Common Law

Common Law in the United States

Common Law Definition

That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the Roman or civil law. As distinguished from statute law, those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority -according to the definition of Common Law based on the Cyclopedic Law Dictionary– upon any express and positive declaration of the will of the legislature. 1 Kent, Comm. 492. The body of rules and remedies administered by courts of law, technically so called, in contradistinction to those of equity, and to the canon law. 3 Pet. (U.S.) 446. The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application. As used in the United States, it includes both the unwritten law of England and the statutes passed before the settlement of the United States. The common law is not fixed in its scope, but develops new principles by analogy as new conditions arise.

Analysis and Relevance

Common law is law based upon prevailing usage. Use of common law invests judges with substantial flexibility in fashioning responses to specific case needs, although precedents established by judges reduce its flexibility. Once a decision is made, its root principles are drawn upon in subsequent cases of a similar kind, thus making the particular legal principle common to other related situations. Common law forms the basis of many legal processes in the states. While there is no federal common law as such, federal judges do utilize state common law in diversity of citizenship cases. Common law must yield to statute where conflict exists, but statutory law is generally founded upon common law principles. As a consequence, few major substantive conflicts arise. Furthermore, courts tend to interpret statutory law using common law traditions, which further diminishes the likelihood of incompatibility between statutes and common law principles. (1)

Common Law in the United States

Common Law in the United States

Most of the British common law as it existed at the time of the American Revolution became the foundation of a distinctly American system of law. Common law has varied from state to state, but only one state, Louisiana, differs significantly from the rest, basing its system on the French civil-law model. In each state the highest appellate court, usually the state supreme court, is the ultimate arbiter of the common law, subject to alterations by legislative action. The U.S. Supreme Court is the ultimate arbiter of all federal law and of the U.S. Constitution, which is superior to all other laws. As in Britain, statutory law has largely supplanted common law in state and federal systems, although common law is still influential. The order of authority of law in the United States, is the Constitution, treaties with foreign powers and acts of Congress, state constitutions, state statutory law, and finally the common law. (2)

More

Even before legislatures met to make rules for society, disputes happened and judges decided them. In England, judges began writing down the facts of a case and the reasons for their decision. They often resorted to deciding cases on the basis of prior written decisions. In relying on those prior decisions, the judge would reason that since a current case was pretty much like a prior case, it ought to be decided the same way. This is essentially reasoning by analogy. Thus the use of precedent in common-law cases came into being, and a doctrine of stare decisis (pronounced STAR-ay-de-SIGH-sus) became accepted in English courts. Stare decisis means, in Latin, “let the decision stand.”

Most judicial decisions that don’t apply legislative acts (known as statutes) will involve one of three areas of law—property, contract, or tort. Property law deals with the rights and duties of those who can legally own land (real property), how that ownership can be legally confirmed and protected, how property can be bought and sold, what the rights of tenants (renters) are, and what the various kinds of “estates” in land are (e.g., fee simple, life estate, future interest, easements, or rights of way). Contract law deals with what kinds of promises courts should enforce. For example, should courts enforce a contract where one of the parties was intoxicated, underage, or insane? Should courts enforce a contract where one of the parties seemed to have an unfair advantage? What kind of contracts would have to be in writing to be enforced by courts? Tort law deals with the types of cases that involve some kind of harm and or injury between the plaintiff and the defendant when no contract exists. Thus if you are libeled or a competitor lies about your product, your remedy would be in tort, not contract.

The thirteen original colonies had been using English common law for many years, and they continued to do so after independence from England. Early cases from the first states are full of references to already-decided English cases. As years went by, many precedents were established by US state courts, so that today a judicial opinion that refers to a seventeenth- or eighteenth-century English common-law case is quite rare.

Courts in one state may look to common-law decisions from the courts of other states where the reasoning in a similar case is persuasive. This will happen in “cases of first impression,” a fact pattern or situation that the courts in one state have never seen before. But if the supreme court in a particular state has already ruled on a certain kind of case, lower courts in that state will always follow the rule set forth by their highest court.

Plain-English Law

Common Law as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455): Rules that are established by court decisions and not by statutes, regulations, or ordinances.

Practical Information

A system of law, or body of legal rules, derived from decisions of judges based upon accepted customs and traditions. It was developed in England. It is known as the common law because it is believed that these rules were generally recognized and were in full force throughout England. Common law is now the basis of the laws of every state of the Union; except Louisiana, which bases its laws upon the early laws of France. Statutes have been enacted to supplement and supersede the common law in many fields; the common law, however, still governs where there is no statute dealing with a specific subject. Although the common law is written, it is called the unwritten law in contradistinction to statutory law (in U.S. law) enacted by the legislatures. (Revised by Ann De Vries)

Common Law (Anglo-American)

United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled 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.

Common Law in the Context of International Disputes

Common Law Origins of Forum Non Conveniens Doctrine in International Civil Litigation

Analysis of the Common Law Origins of Forum Non Conveniens Doctrine in relation with the Forum Non Conveniens in International Litigation.

Common Law in the Context of Law Research

The Thurgood Marshall School of Law Library defined briefly Common Law as: The origin of the Anglo-American legal systems. English common law was largely customary law and unwritten, until discovered, applied, and reported by the courts of law. In theory, the common law courts did not create law but rather discovered it in the customs and habits of the English people. The strength of the judicial system in preparliamentary days is one reason for the continued emphasis in common law systems on case law. In a narrow sense, common law is the phrase still used to distinguish case law from statutory law.Legal research resources, including Common Law, help to identify the law that governs an activity and to find materials that explain that law.

Common Law in the context of Juvenile and Family Law

Definition ofCommon Law, published by the National Council of Juvenile and Family Court Judges: Law developed as the result of judicial decisions rather than by legislative enactments (see STATUTE).

Common Law Definition in the context of the Federal Court System

The legal system that originated in England and is in use in the U.S. today. Common law relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation, but legislation is subject to interpretation by common law methodology. Many areas of the law, such as bankruptcy, are now codified in detailed statutes, but these statutes are applied according to their interpretations by successive precedents established by the courts.

Common Law in the International Business Landscape

Definition of Common Law in the context of U.S. international business and public trade policy: Law made by judges, as distinct from statutory law.

Common Law in the International Business Landscape

Definition of Common Law in the context of U.S. international business and public trade policy: Law that forms the foundation of the legal system in Anglo-American countries; based on cumulative findings of judges in individual cases.

Concept of Common Law in Labor Law

In this context, a definition of Common Law is offered here: The law of a country or state based on custom, usage, and/or the decisions and opinions of a court.

Meaning of Common Law

In plain or simple terms, Common Law means: General provisions of law existing before codification or interpretation by courts.

Basic Meaning of Common Law

Common Law means: non legislated principles and rules of action predicated upon usages and customs.

The Civil Law and Common Law Traditions Explained

References

See Also

  • Basic Principles of Law

Common Law Background

Common Law Background

Resources

Notes and References

  1. Definition of Common Law from the American Law Dictionary, 1991, California
  2. Encarta Online Encyclopedia

See Also

  • Abuse of Process
  • International Judicial Assistance in Civil Matters
  • International Judicial Assistance in Criminal Matters
  • International Judicial Assistance in Administrative Matters
  • Cross-Border Discovery
  • Abroad Evidence
  • Jurisprudence (Judicial Function)
  • Precedence (Judicial Function)
  • Common Law: Property, Torts, and Contracts

Further Reading

  • 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)
  • Harold Potter, Historical Introduction to English Law and Its Institutions (4thed. 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 Professionand the Common Law (1986)
  • Richard L. Abel and Philip S. C. Lewis, ed., TheCommon Law World (1988)

Common Law: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Common Law. This part provides references, in relation to Common Law, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Common Law by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Common Law and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Common Law or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Common Law and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Common Law. Finding these decisions can be challenging. In many cases, researchers about Common Law should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Common Law when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment