Common law
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The defining characteristic of common law is that it arises as
The common law, so named because it was "common" to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the
The term "common law", referring to the body of law made by the
Today, one-third of the world's population lives in common law jurisdictions or in mixed legal systems that combine the common law with the civil law, including[13] Antigua and Barbuda,
Definitions
The term common law has several connotations.
Source of law
The first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions". Black's lists "case law" as a synonym, and "statute" as a contrast.[17] Common law is sometimes explained by contrasting it with other terms; in modern usage, most commonly with statutory law.[2][18] This definition of "common law" distinguishes the authority that promulgated a law, or the source of the law.[19]
Jurisdictional
The second definition in Black's Law Dictionary, 10th ed, contrasts "common law" jurisdictions from "civil law" or "code" jurisdictions.[9] This connotation of common law is "the body of law based on the English legal system...together with the techniques of applying them, that form the basis of the law" that has developed under different circumstances from country to country so that the judge-made common law of different countries may have variations based on local usages.[17]
Law as opposed to equity
Black's Law Dictionary, 10th ed., definition 4, differentiates "common law" (or just "law") from "
For most purposes, the U.S. federal system and most states have merged the two courts.[24][25]
Archaic or obsolete definitions
In addition, there are several historical (but now archaic) uses of the term that, while no longer current, provide background context that assists in understanding the meaning of "common law" today. In one usage that is now archaic, but that gives insight into the history of the common law, "common law" referred to the pre-Christian system of law, imported by the pre-literate Saxons to England and upheld into their historical times until 1066, when the
The term "judge-made law" was first coined by Jeremy Bentham as a rebuttal of the dominant declaratory theory of common law. According to writers like William Blackstone, and through the late 19th century, the dominant theory was that the authority of the common law was derived from the customs of the people that had existed since antiquity.[12][28] The common law was pre-existing; judge's weren't making new laws, but only expounding and applying the old.[12] This definition of common law as an ancient, unwritten law was included in some 18th and 19th century dictionaries including Bouvier's Law Dictionary and Black's Law Dictionary.[28]
By the early 20th century, largely at the urging of Oliver Wendell Holmes, this view had fallen into the minority view: Holmes pointed out that the older view worked undesirable and unjust results, and hampered a proper development of the law.[12] Modern versions of Black's Law Dictionary no longer include this definition. In the century since Holmes, the dominant understanding has been that common law "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law".[12] Holmes wrote in a 1917 opinion, "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified."[4]
"Common law" as the term is used today in common law countries contrasts with
The English Court of Common Pleas dealt with lawsuits in which the monarch had no interest, i.e., between commoners.
Black's Law Dictionary, 10th ed., definition 3 is "General law common to a country as a whole, as opposed to special law that has only local application."
Basic principles of common law
Common law adjudication
In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation.[31] First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.[32] Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.
In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular
Common law evolves to meet changing social needs and improved understanding
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The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.[35] In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences).[citation needed]
One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were parties to a contract (privity of contract). Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, Winterbottom v Wright,[36] the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party.
A first exception to this rule arose in 1852, in the case of Thomas v. Winchester,[37] when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger". Thomas relied on this reason to create an exception to the "privity" rule. In 1909, New York held in Statler v. Ray Mfg. Co.[38] that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed".
Yet the privity rule survived. In Cadillac Motor Car Co. v. Johnson[39] (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes". The Cadillac court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud".
Finally, in the famous case of
It may be that Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgesen v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought. We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.
Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger". MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of
The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years.[41] (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.
Publication of decisions
All law systems rely on written publication of the law,
After the American Revolution, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.[42] The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw", while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.
Comparison with statutory law
Statutes are generally understood to supersede common law. They may
"Legislating from the bench"
At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what Roscoe Pound described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of statutory interpretation.[45][46]
Jeremy Bentham famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent - sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law.[47] Oliver Wendell Holmes once dissented: "judges do and must legislate".[48]
Statutory construction
There is a controversial legal maxim in American law that "Statutes in derogation of the common law ought to be narrowly construed". Henry Campbell Black once wrote that the canon "no longer has any foundation in reason". It is generally associated with the Lochner era.[49]
The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the plain meaning rule to reach decisions.[45] As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 (1993):[non-primary source needed]
Just as longstanding is the principle that "[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. Astoria, 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); Milwaukee v. Illinois, 451 U. S. 304, 315 (1981).
As another example, the Supreme Court of the United States in 1877,[50] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.
Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law," which includes judicial interpretation of fundamental laws, such as the
Overruling precedent—the limits of stare decisis
The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals (plus a thirteenth, the Court of Appeals for the Federal Circuit, which hears appeals in patent cases and cases against the federal government, without geographic limitation). Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive.
Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc (that is, all active judges of the court) or by a higher court.[52] In these courts, the older decision remains controlling when an issue comes up the third time.
Other courts, for example, the Court of Customs and Patent Appeals and the Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.
In the jurisdictions of England and Wales and of Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions, but not for criminal law cases in Scotland, where the High Court of Justiciary has this power instead (except on questions of law relating to reserved matters such as devolution and human rights). From 1966 to 2009, this power lay with the House of Lords, granted by the Practice Statement of 1966.[53]
Canada's federal system, described below, avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.
Common law as a foundation for commercial economies
The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency.
In contrast, in jurisdictions with very weak respect for precedent,[57] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides.[54] In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance (unless the written law is very clear and kept updated) and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties.
This is the reason
Likewise, for litigation of commercial disputes arising out of unpredictable torts (as opposed to the prospective choice of law clauses in contracts discussed in the previous paragraph), certain jurisdictions attract an unusually high fraction of cases, because of the predictability afforded by the depth of decided cases. For example, London is considered the pre-eminent centre for litigation of admiralty cases.[61]
This is not to say that common law is better in every situation. For example, civil law can be clearer than case law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation. For that reason, civil law statutes tend to be somewhat more detailed than statutes written by common law legislatures—but, conversely, that tends to make the statute more difficult to read.
History
Origins
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the
The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center).[62][63]
The doctrine of precedent developed during the 12th and 13th centuries,
The form of reasoning used in common law is known as
Medieval English common law
In 1154,
At the time, royal government centered on the
The king's object was to preserve public order, but providing law and order was also extremely profitable–cases on forest use as well as fines and forfeitures can generate "great treasure" for the government.[67][66] Eyres (a Norman French word for judicial circuit, originating from Latin iter) are more than just courts; they would supervise local government, raise revenue, investigate crimes, and enforce feudal rights of the king.[66] There were complaints of the eyre of 1198 reducing the kingdom to poverty[68] and Cornishmen fleeing to escape the eyre of 1233.[69]
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. The murder of the archbishop gave rise to a wave of popular outrage against the King. International pressure on Henry grew, and in May 1172 he negotiated a settlement with the papacy in which the King swore to go on crusade as well as effectively overturned the more controversial clauses of the Constitutions of Clarendon. Henry nevertheless continued to exert influence in any ecclesiastical case which interested him and royal power was exercised more subtly with considerable success.
The English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest. Its judges sat in open court in the Great Hall of the king's Palace of Westminster, permanently except in the vacations between the four terms of the Legal year.
Judge-made common law operated as the primary source of law for several hundred years, before
Influence of Roman law
The term "common law" is often used as a contrast to Roman-derived "civil law", and the fundamental processes and forms of reasoning in the two are quite different. Nonetheless, there has been considerable cross-fertilization of ideas, while the two traditions and sets of foundational principles remain distinct.
By the time of the rediscovery of the
Early modern era
The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century.[12] However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law.[12]
West's encyclopedia of American law, defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts."[79]
Coke
The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice Edward Coke, in his treatise, Institutes of the Lawes of England in the 17th century.
As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his Reports (1600–1615), 'the grounds of our common laws' were 'beyond the memorie or register of any beginning.'"[80]
Blackstone
According to William Blackstone the unwritten law derived its authority from immemorial usage and 'universal reception throughout the kingdom'[81][82] While it's precise meaning may have changed since Blackstone's time, in modern usage it is generally understood to mean law that is independent of statutes. This was repeated by the United States Supreme Court in Levy v. McCartee: "It is too plain for argument that the common law is here spoken of, in its appropriate sense, as the unwritten law of the land, independent of statutory enactments".[82]
More specifically, in modern usage, this is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era.[46][83]
Jeremy Bentham
The term "judge made law" comes from Jeremy Bentham and the modern practice of adjudication as application of precedent derived from case law begins with Jeremy Bentham's attack on the legitimacy of the common law. The modern legal practice of applying case law as precedent made obsolete the declaratory theory of common law that prevailed in Blackstone's time.[84][85]
Propagation of the common law to the colonies and Commonwealth by reception statutes
A
Other examples of reception statutes in the United States, the states of the U.S., Canada and its provinces, and Hong Kong, are discussed in the reception statute article.
Yet, adoption of the common law in the newly independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception.[42] Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later President) John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in 1803, lawyers in Massachusetts donated their books to found a law library.[42] A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose."[42]
For several decades after independence, English law still exerted influence over American common law—for example, with Byrne v Boadle (1863), which first applied the res ipsa loquitur doctrine.
Decline of Latin maxims and "blind imitation of the past", and adding flexibility to stare decisis
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such as those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims.
Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. Oliver Wendell Holmes Jr. in his famous article, "The Path of the Law",[87] commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present", but "the man of the future is the man of statistics and the master of economics". In an 1880 lecture at Harvard, he wrote:[88]
The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
In the early 20th century,
Reliance on old maxims is now deprecated.[89] Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like.[90] The degree to which these external factors should influence adjudication is the subject of active debate, but it is indisputable that judges do draw on experience and learning from everyday life, from other fields, and from other jurisdictions.[91]
1870 through 20th century, and the procedural merger of law and equity
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 (as opposed to equity)) 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,[92] even though it was established by the 17th century that equity should prevail.
In England, courts of law (as opposed to equity) were merged with courts of equity by the Judicature Acts of 1873 and 1875, with equity prevailing in case of conflict.[93]
In the United States, parallel systems of
The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided courts of law and courts of chancery, for example, the Delaware Court of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division.
Common law pleading and its abolition in the early 20th century
For centuries, through to the 19th century, the common law acknowledged only specific forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into exactly one of them: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case (or trespass on the case), and ejectment.[95] To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific legal terms and phrases that had been traditional for centuries. Under the old common law pleading standards, a suit by a pro se ("for oneself", without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.
One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.[96] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.[97] This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.[98]
Alternatives to common law systems
Civil law systems
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of Central and South America.
Common law systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.[99][100] A few Western countries use other legal traditions, such as Roman-Dutch law or Scots law, for example.
Role of precedent
The primary contrast between the two systems is the role of written decisions and precedent.[54] While Common law systems place great weight on precedent, [101] civil law judges tend to give less weight to judicial precedent.[102] For example, the Napoleonic Code expressly forbade French judges to pronounce general principles of law.[103][non-primary source needed]
In common law jurisdictions, the legal reasoning for the decision, known as ratio decidendi, not only determines the court's judgment between the parties, but also stands as precedent for resolving future disputes. In contrast, civil law decisions typically do not include explanatory opinions, and thus no precedent flows from one decision to the next.[104] In civil law jurisdictions is filled by giving greater weight to scholarly literature, as explained below.
In civil law jurisdictions courts lack authority to act if there is no statute. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court.[105]
Adversarial system vs. inquisitorial system
Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator.[106][107]
Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge.[106][107] For example, in criminal cases, in adversarial systems, the prosecutor and adjudicator are two separate people. The prosecutor is lodged in the executive branch, and conducts the investigation to locate evidence. That prosecutor presents the evidence to a neutral adjudicator, who makes a decision.
In contrast, in civil law systems, criminal proceedings proceed under an inquisitorial system in which an examining magistrate serves two roles by first developing the evidence and arguments for one side and then the other during the investigation phase.[106][107] The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore, the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier.[citation needed] Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.
The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change his or her evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation.
In contrast, in an adversarial system, on issues of fact, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented. "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present."[108] This principle applies with force in all issues in criminal matters, and to factual issues: courts seldom engage in fact gathering on their own initiative, but decide facts on the evidence presented (even here, there are exceptions, for "legislative facts" as opposed to "adjudicative facts").
On the other hand, on issues of law, common law courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them. The United States Supreme Court regularly decides based on issues raised only in
There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, and so on), even though the law to be applied is developed through common law processes.
Contrasting role of treatises and academic writings in common law and civil law systems
The role of the legal academy presents a significant "cultural" difference between common law (connotation 2) and civil law jurisdictions. In both systems, treatises compile decisions and state overarching principles that (in the author's opinion) explain the results of the cases. In neither system are treatises considered "law", but the weight given them is nonetheless quite different.
In common law jurisdictions, lawyers and judges tend to use these
In contrast, in civil law jurisdictions, courts give the writings of law professors significant weight, partly because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale had to come from somewhere else: the academy often filled that role.
Narrowing of differences between common law and civil law
The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of
Examples of common law being replaced by statute or codified rule in the United States include criminal law (since 1812,[114] U.S. federal courts and most but not all of the states have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute.
An example of convergence from the other direction is shown in the 1982 decision Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (ECLI:EU:C:1982:335), in which the European Court of Justice held that questions it has already answered need not be resubmitted. This showed how a historically distinctly common law principle is used by a court composed of judges (at that time) of essentially civil law jurisdiction.
Other alternatives
The former
Much of the Muslim world uses legal systems based on Sharia (also called Islamic law).
Many churches use a system of canon law. The canon law of the Catholic Church influenced the common law during the medieval period[116] through its preservation of Roman law doctrine such as the presumption of innocence.[117]
Common law legal systems in the present day
In jurisdictions around the world
The common law constitutes the basis of the legal systems of:
- Australia (both federally and in each of the states and territories)
- Bangladesh
- Belize
- Brunei
- Canada (both federal and the individual provinces, with the exception of Quebec)
- the Caribbean jurisdictions of Antigua and Barbuda, Barbados, Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago
- Cyprus
- Ghana
- Hong Kong
- India
- Ireland
- Israel
- Kenya
- Nigeria
- Malaysia
- Malta
- Myanmar
- New Zealand
- Pakistan
- Philippines
- Singapore
- South Africa
- Northern Ireland)
- United States (both the federal system and the individual states and Territories, with the partial exception of Louisiana and Puerto Rico)
and many other generally
The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.
Scotland
Scotland shares the Supreme Court with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK law of negligence is based on Donoghue v Stevenson, a case originating in Paisley, Scotland.
Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom (before October 2009, final appellate jurisdiction lay with the House of Lords).[119]
The United States – its states, federal courts, and executive branch agencies (17th century on)
New York (17th century)
The original colony of
Louisiana (1700s)
Under Louisiana's codified system, the Louisiana Civil Code, private law—that is, substantive law between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from Roman law, transmitted through French law and Spanish law, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the Napoleonic Code, as the latter was enacted in 1804, one year after the Louisiana Purchase. However, the two codes are similar in many respects due to common roots.
Louisiana's
Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.[121]
California (1850s)
The
United States federal courts (1789 and 1938)
After
In Swift, the
Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.[c] Outside diversity jurisdiction and when there is no federal statute,[d] post-Erie federal courts have continued to create causes of action.[125] Justice Lewis Powell strongly objected to this practice in an influential dissent for the case Cannon v. University of Chicago.[45]
United States executive branch agencies (1946)
Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the
For example, the
India, Pakistan, and Bangladesh (19th century and 1948)
The law of India, Pakistan, and Bangladesh are largely based on
Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.[126] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[127] Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.[128] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.[129]
When India became part of the
Post-partition India (1948)
Post-partition,
Post-partition Pakistan (1948)
Post-partition, Pakistan retained its common law system.[134]
Post-partition Bangladesh (1968)
Post-partition, Bangladesh retained its common law system.
Canada (1867)
Canadian provincial legal systems
Each province and territory is considered a separate jurisdiction with respect to case law. Each has its own procedural law in civil matters, statutorily created provincial courts and superior trial courts with inherent jurisdiction culminating in the Court of Appeal of the province. These Courts of Appeal are then subject to the Supreme Court of Canada in terms of appeal of their decisions.
All but one of the provinces of
Canadian federal legal system
Canadian Federal Courts operate under a separate system throughout Canada and deal with narrower range of subject matter than superior courts in each province and territory. They only hear cases on subjects assigned to them by federal statutes, such as immigration, intellectual property, judicial review of federal government decisions, and admiralty. The
Canadian federal statutes must use the terminology of both the common law and civil law for civil matters; this is referred to as legislative bijuralism.[137]
Canadian criminal law
Criminal law is uniform throughout Canada. It is based on the federal statutory Criminal Code, which in addition to substance also details procedural law. The administration of justice are the responsibilities of the provinces. Canadian criminal law uses a common law system no matter which province a case proceeds.
Nicaragua
Nicaragua's legal system is also a mixture of the English Common Law and Civil Law. This situation was brought through the influence of British administration of the Eastern half of the Mosquito Coast from the mid-17th century until about 1894, the William Walker period from about 1855 through 1857, US interventions/occupations during the period from 1909 to 1933, the influence of US institutions during the Somoza family administrations (1933 through 1979) and the considerable importation between 1979 and the present of US culture and institutions.[138][139]
Israel (1948)
Roman Dutch common law
Ghana
Ghana follows the English common law[142] tradition which was inherited from the British during her colonisation. Consequently, the laws of Ghana are, for the most part, a modified version of imported law that is continuously adapting to changing socio-economic and political realities of the country.[143] The Bond of 1844[144] marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British[145] and gave the British judicial authority. Later, the Supreme Court Ordinance of 1876 formally introduced British law, be it the common law or statutory law, in the Gold Coast.[146] Section 14[147] of the Ordinance formalised the application of the common-law tradition in the country.
Ghana, after independence, did not do away with the common law system inherited from the British, and today it has been enshrined in the 1992 Constitution of the country. Chapter four of Ghana's Constitution, entitled "The Laws of Ghana", has in Article 11(1) the list of laws applicable in the state. This comprises (a) the Constitution; (b) enactments made by or under the authority of the Parliament established by the Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution; (d) the existing law; and (e) the common law.[148] Thus, the modern-day Constitution of Ghana, like those before it, embraced the English common law by entrenching it in its provisions. The doctrine of judicial precedence which is based on the principle of stare decisis as applied in England and other pure common law countries also applies in Ghana.
Scholarly works
Edward Coke, a 17th-century Lord Chief Justice of the English Court of Common Pleas and a Member of Parliament (MP), wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his Institutes and Reports until the end of the 18th century. His works are still cited by common law courts around the world.
The next 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
In the United States,
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
- Outline of law
- List of common law national legal systems
- Books of authority
- Lists of case law
- Doom book, or Code of Alfred the Great
- Time immemorial
- Slavery at common law
- Rule against perpetuities
- Rule in Shelley's Case
- Fee simple
- Life estate
References
- ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems Archived 22 July 2016 at the Wayback Machine, Website of the Faculty of Law of the University of Ottawa
- ^ ISBN 9780195077698.
In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed in England... [P]erhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law ...
- ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
1. The body of law derived from judicial decisions, rather than from statutes or constitutions; [synonym] CASE LAW [contrast to] STATUTORY LAW.
- ^ a b c "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified," Southern Pacific Company v. Jensen, 244 U.S. 205, 222 (1917) (Oliver Wendell Holmes, dissenting). By the early 20th century, legal professionals had come to reject any idea of a higher or natural law, or a law above the law. The law arises through the act of a sovereign, whether that sovereign speaks through a legislature, executive, or judicial officer.
- ^ Karl Llewellyn, The Common Law Tradition: Deciding Appeals at 77–87, Little, Brown, Boston MA (1960)
- ^ Marbury v. Madison, 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.")
- ^ a b c d e Langbein, Lerner & Smith (2009), p. 4.
- ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies...
- ^ ISBN 9780195077698.
"common law" is contrasted by comparative jurists to civil law.
- Archive-It, 8 December 2008:, retrieved on 7 November 2009. "2. The system of law originated and developed in England and based on prior court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than codified written law. Contrast: CIVIL LAW."
- ^ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
- ^ JSTOR 1112172. (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.")
- ^ JuriGlobe, Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems[1] Archived 22 July 2016 at the Wayback Machine
- ^ "The Common Law in the World: the Australian Experience" (PDF). W3.uniroma1.it. Archived from the original (PDF) on 27 July 2011. Retrieved 30 May 2010.
- ^ Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, (2015) Bond Law Review, Volume 27.[2] Archived 31 July 2017 at the Wayback Machine
- ^ "Parliament of Barbados: one of the oldest Constitutions in the Commonwealth". Archived from the original on 22 November 2011. Retrieved 6 November 2011.
- ^ a b Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
- ^ Brudney, James; Baum, Lawrence (November 2013). "Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras". Retrieved 2 February 2024.
- ^ a b Salmond 1907, p. 32
- ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
4. The body of law derived from law courts as opposed to those sitting in equity.
- ISBN 9780195077698.
Second, with the development of equity and equitable rights and remedies, common law and equitable courts, procedure, rights, and remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity.
- ^ Harris v Digital Pulse Pty Ltd [2003] NSWCA 10 at [21]–[27] (Spigelman CJ), [132]–[178] (Mason P, dissenting), [353] (Heydon JA), (2003) 56 NSWLR 298, 306 (Spigelman CJ), 325–9 (Mason P, dissenting), 391–2 (Heydon JA)
- ^ Tilbury, Michael (2003). "Fallacy or Furphy?: Fusion in a Judicature World" (PDF). UNSW Law Journal. 26 (2).
- ^ Federal Rule of Civil Procedure, Rule 2 ("There is one form of action—the civil action.") (1938)
- ^ Friedman 2005, p. xix
- ^ One example of this usage is in a letter from Thomas Jefferson to Thomas Cooper. Jefferson, Thomas (10 February 1814). "Letter to Dr. Thomas Cooper". Archived from the original on 15 June 2012. Retrieved 11 July 2012.
Authorities for what is common law may therefore be as well cited, as for any part of the Lex Scripta, and there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present; where we detect them endeavoring to make law where they found none, and to submit us at one stroke to a whole system, no particle of which has its foundation in the common law. For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Carta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first Christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it.
- ^ Another example of this usage is in another letter of Jefferson, to John Cartright.Jefferson, Thomas (5 June 1824). "Letter To Major John Cartwright". Retrieved 11 July 2012.
I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.
- ^ a b Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
the common law comprises the body of those principles and rules of action ... which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England
- ISBN 978-0-85423-165-2
- ^ a b c Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
- ^ Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007) [3] [4]
- ^ e.g., Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office)
- ^ Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).
- ^ Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
- act of parliament". I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)
- ^ Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)
- ^ Thomas v. Winchester, 6 N.Y. 397 (N.Y. 1852)
- ^ Statler v. Ray Mfg. Co., 195 N.Y. 478, 480 (N.Y. 1909)
- ^ Cadillac Motor Car Co. v. Johnson, 221 F. 801 (2nd Cir. 1915)
- ^ MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)
- ^ a b Stuart Speiser, et al., The American Law of Torts, §§ 1:2, 1:5, and 1:6, Thomson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance [of courts] to overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).
- ^ a b c d e Social Law Library, Common Law or Civil Code?, Boston, Massachusetts.
- ^ "Legal Dictionary – Law.com". Law.com Legal Dictionary.
- ^ E. Allen Farnsworth, Farnsworth on Contracts, § 1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions [remain] the dominant primary source of contract law.")
- ^ a b c Popkin, William D. (1999). Statutes in Court: The History and Theory of Statutory Interpretation. Duke University Press. p. 254.
There is an old principle of law that every right has a remedy, which comes from an age when statutes often did little more than identify a legal wrong, leaving it to the common law to supply a remedy. But the courts extended this approach to infer a private cause of action even when the statute already provided specific (often administrative) remedies. The Court has recently retreated from an expansive inference of private remedies, first adopting a four part test which imposed some limits on inferring a private cause of action, and then shifting to legislative intent test...Justice Lewis Powell put it most forthrightly in his dissent in Cannon v. University of Chicago where he stated that the Article III judicial power did not include the power to imply private causes of action from silent statutes.
- ^ JSTOR 1109940.
The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed...the object of spurious interpretation is to make, unmake, or remake, and not merely to discover...it is essentially a legislative, not a judicial process, made necessary in formative periods by the paucity of principles, feebleness of legislation and rigidity of rules characteristic of archaic law. So long as law is regarded as sacred, or for any reason as incapable of alteration, such a process is necessary for growth, but surviving into periods of legislation, it becomes a source of confusion.
- ^ Pound, Roscoe (1941). "What of Stare Decisis?". Fordham Law Review. 10 (1).
- ^ Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).
- ^ Popkin, William (1999). Statutes in Court: The History and Theory of Statutory Interpretation. Duke University Press. p. 97.
- ^ Meister v. Moore, 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")
- ^ "Common Law – Atlas of Public Management". Retrieved 2 February 2024.
- ^ E.g., South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc in relevant part) (explaining order of precedent binding on the United States Court of Appeals for the Federal Circuit); Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc) (after the Eleventh Circuit was split off from the Fifth Circuit, adopting precedent of Fifth Circuit as binding until overruled by the Eleventh Circuit en banc: "The [pre-split] Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule."); Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office).
- ^ 83 Cr App R 191, 73 Cr App R 266
- ^ a b c "LawGovPol, Common law: advantages and disadvantages".
- ^ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
- ^ See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law Archived 2007-05-02 at the Wayback Machine" (2006).
- ^ For example, the U.S. Patent Office issues very few of its decisions in precedential form. Kate Gaudry & Thomas Franklin, "Only one in 20,631 ex parte appeals designated precedential by PTAB", IPWatchdog (27 September 2015). Various lower tribunals in the Patent Office give very weak respect to earlier superior decisions.
- ^ a b Theodore Eisenberg & Geoffrey P. Miller (2008). The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies' Contracts. New York University Law and Economics Working Papers. Paper 124, Archived 1 April 2011 at the Wayback Machine (based on a survey of 2882 contracts, "New York law plays a role for major corporate contracts similar to the role Delaware law plays in the limited setting of corporate governance disputes. ... New York's dominance is striking. It is the choice of law in approximately 46 percent of contracts", and if merger contracts excluded, over half).
- ^ Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract—[merger] trust agreements. ... The dominance of Delaware for this specialized type of contract is apparently due to the advantages and flexibility which Delaware's business trust statute.")
- ^ Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
- ^ Osley, Richard (23 November 2008). "London becomes litigation capital of the world". The Independent. London. London is also forum for many defamation cases, because UK law is more plaintiff-friendly—in the United States, the First Amendment protection for freedom of the press allows for statements concerning public figures of questionable veracity, where in the UK, those same statements support a judgment for libel. This relative weakness of protection for freedom of speech led the United States to limit enforcement of foreign (in particular, English) defamation judgements in the SPEECH Act of 2010, thus making England and Wales a less attractive forum for such cases.
- ^ Documents from Medieval and Early Modern England from the National Archives in London.[5] Archived 6 March 2016 at the Wayback Machine Publications of the Selden Society include a Year Books series and other volumes transcribing and translating the original manuscripts of early common law cases and law reports, each volume having its editor's scholarly introduction. Publications of the Selden Society
- Edward I, .[6]
- JSTOR 1140057.
- ^ Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law
- ^ ISBN 978-0-19-881260-9.
- ^ Croniques de London (Camden Soc., 1844), pp. 28–9.
- ^ Chronica Rogeri de Houedene (RS, 1871), IV, p. 62.
- ^ Annales Monastici (RS, 1864–69), III, p. 135.
- ^ T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260–261
- ^ "BUSL, Legal History: The Year Books".
- ^ Cambridge History of English and American Literature The Year Books and their Value[7]
- ^ E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
- ^ E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
- ^ E.g., George E. Woodbine (ed.), Samuel E. Thorne (transl.), Bracton on the Laws and Customs of England, Vol. I (Introduction) 46 (1968); Carl Güterbock, Bracton and his Relation to the Roman Law 35–38 (1866).
- ^ Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24.
- ^ Peter Stein, Continental Influences on English Legal thought, 1600–1900, in Peter Stein, The Character and Influence of the Roman Civil Law 223 et seq. (1988).
- ^ See generally Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007.
- ISBN 9780787663704
- ^ James R. Stoner, Jr., Common Law and the Law of Reason (Stoner is a professor of political science, not law)
- ^ Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769)
- ^ a b Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p 15876
- ^ Sir William Blackstone (1723–1780), Commentaries on the Laws of England (1765–1769): "Statutes are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disreputable; remedial when made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.
- ^ Gearey, Adam; Morrison, Wayne; Jago, Robert (2013). The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Taylor & Francis. p. 115.
- .
- ^ Edited Thinking like a lawyer: an introduction to legal reasoning[permanent dead link] (Westview Press, 1996), pg. 10
- JSTOR 1322028.
- The Common Law "O. W. Holmes, Jr., The Common Law". 1882.
- ^ Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).
- ^ Foreign influence over American law is not new; only the controversy. For example, in The Western Maid, 257 U.S. 419, 432 (1922), Justice Holmes wrote "When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules," and adopted a rule from without to decide the case.
- ^ Roper v. Simmons, 543 U.S. 551 (2005) (holding unconstitutional to impose capital punishment for crimes committed while under the age of 18, based on "evolving standards of decency", largely based on other nations' law)
- ^ Salmond 1907, p. 34
- ISSN 0738-2480.
- ^ E.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("[W]e [the U.S. Supreme Court] have understood that the right of trial by jury thus preserved is the right which existed under the English common law (as opposed to equity) when the Amendment was adopted. In keeping with our longstanding adherence to this 'historical test', we ask, first, whether we are dealing with a cause of action that either was tried at law (as opposed to equity) at the time of the founding or is at least analogous to one that was. If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." (citations and quotations omitted, holding that interpretation of the scope of a patent had no analogy in 1790, and is thus a question to be decided by a judge, not a jury)
- ^ F. W. Maitland, The Forms of Action at Common Law, 1909, Lecture I, Archived 22 June 2016 at the Wayback Machine or John Jay McKelvey, Principles of Common Law Pleading (1894) or Ames, Chitty, Stephen, Thayer and other writers named in the preface of Perry's Common-law Pleading: its history and principles (Boston, 1897) or Koffler and Reppy, 1969, Handbook of Common Law Pleading
- ^ The remainder of the "common law" discussed in the rest of the article remained intact; all that was abolished were the highly technical requirements for language of the paper provided by the plaintiff to the defendant to initiate a case.
- ^ E.g., Federal Rule of Civil Procedure, Rule 4, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief".
- ^ E.g., Federal Rule of Civil Procedure, Rule 1, civil procedure rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding".
- ^ "Description and History of Common Law". Archived from the original on 28 February 2017. Retrieved 14 March 2017.
- ^ "The Common Law and Civil Law Traditions". Archived from the original on 22 April 2016. Retrieved 11 June 2016.
- ^ It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities". Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 at para. 21
- ^ Garoupa, Nuno; Liguerre, Carlos Gomez (2011). "The Syndrome of the Efficiency of the Common Law". Boston University International Law Journal. 29: 298.
- ^ "5. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them." Code of Napoleon, Decree of March 5, 1803, Law 5
- ^ Potter, H. Law, Liberty and the Constitution: A Brief History of the common Law (2018)
- ^ The Common Law and Civil Law Traditions, Robbins Collection, University of California at Berkeley.[8] Archived 22 April 2016 at the Wayback Machine
- ^ a b c "Inquisitorial And Adversarial System Of Law". lawteacher.net.
- ^ a b c LangstoT. "Types of Legal System: Adversarial v. Investigatory Trial Systems". compass.port.ac.uk. Archived from the original on 25 November 2017. Retrieved 17 November 2017.
- ^ United States v. Sineneng-Smith, No. 19–67 (7 May 2020)
- ^ Frost, Amanda (2009). "The Limits of Advocacy". Duke Law Journal. 59 (3): 447–518.
- ^ the appendix to the Sineneng-Smith opinion gives an extensive catalog of cases in which the Court permissibly sought outside briefing.
- ^ See Greenlaw v. United States and United States v. Sineneng-Smith
- ^ At least in the U.S., practicing lawyers tend to use "law professor" or "law review article" as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality—every young lawyer is admonished repeatedly by senior lawyers not to write "law review articles," but instead to focus on the facts of the case and the practical effects of a given outcome.
- ^ A Conversation with Chief Justice Roberts, 11 June 2011 [9] at 30:30.
- (1812)
- JSTOR 840224.
- ^ Friedman, Lawrence M., American Law: An Introduction (New York: W.W. Norton & Company, 1984), pg. 70.
- ^ William Wirt Howe, Studies in the Civil Law, and its Relation to the Law of England and America (Boston: Little, Brown, and Company, 1896), pg. 51.
"In one of his elaborate orations in the United States Senate Mr. Charles Sumner spoke of "the generous presumption of the common law in favor of the innocence of an accused person;" yet it must be admitted that such a presumption cannot be found in Anglo-Saxon law, where sometimes the presumption seems to have been the other way. And in a very recent case in the Supreme Court of the United States, the case of Coffin, 156 U. S. 432, it is pointed out that this presumption was fully established in the Roman law, and was preserved in the canon law." - ^ Stair Memorial Encyclopedia
- ^ Court, The Supreme. "Role of The Supreme Court – The Supreme Court". www.supremecourt.uk.
- ^ William Nelson, Legal Turmoil in a Factious Colony: New York, 1664–1776, 38 Hofstra L. Rev. 69 (2009).
- ^ "Sara Jane Sandberg, Women and the Law of Property Under Louisiana Civil Law, 1782–1835 (2001)".
- ^ Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.").
- ^ City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act, in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); Milwaukee v. Illinois, 451 U.S. 304 (1981)
- ^ D'Oench, Duhme & Co. v. FDIC, 315 US 447, 472 (1942), Jackson, J., concurring. Cited in Bradley, Curtis A. International Law in the U.S. Legal System. United Kingdom, Oxford University Press, 2015, 157
- ^ Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation. Oxford University Press. 2021. p. 134.
- ^ Glenn 2000, p. 255
- ^ Glenn 2000, p. 276
- ISSN 0020-5893.
- ^ Viswanatha, S.T., International Law in Ancient India, 1925
- ^ Glenn 2000, p. 273
- ^ "Official, India". World Digital Library. 1890–1923. Retrieved 30 May 2013.
- ^ Jain 2006, p. 2
- ^ K. G. Balakrishnan (23–24 March 2008). An Overview of the Indian Justice Delivery Mechanism (PDF) (Speech). International Conference of the Presidents of the Supreme Courts of the World. Abu Dhabi. Archived from the original (PDF) on 2 November 2012. Retrieved 1 August 2012.
India, being a common law country, derives most of its modern judicial framework from the British legal system.
- ^ "Federation of Pakistan v. Bhatti, "in a common law jurisdiction such as ours"" (PDF). Archived from the original (PDF) on 6 October 2014. Retrieved 22 February 2012.
- ^ Constitution Act, 1867, s. 91(10), (18)
- ^ "Federal Court of Appeal – Home". Fca-caf.gc.ca. Archived from the original on 4 May 2008. Retrieved 17 August 2013.
- ^ Branch, Government of Canada, Department of Justice, Legislative Services (14 November 2008). "Department of Justice – About Bijuralism". canada.justice.gc.ca.
{{cite web}}
: CS1 maint: multiple names: authors list (link) - ^ Serrano Caldera, Alejandro (1990). "The Rule of Law in the Nicaraguan Revolution". Loyola of Los Angeles International and Comparative Law Review and Compara. 12 (2): 341.
- ^ "UPDATE: Guide to Legal Research in Nicaragua - GlobaLex". www.nyulawglobal.org. Retrieved 8 May 2022.
- ^ "Supreme court decisions database". Archived from the original on 9 April 2014. Retrieved 20 April 2014.
- ^ New York Times, A rush to change (Jan. 15, 2023); ConstitutionNet, Basic Law Legislation: The Basic Law that can Make or Break Israeli Constitutionalism (Aug. 16, 2021).
- ^ The common law as used in this paper designates the English common-law as a legal tradition which is made up of law (generally referred to as the common law), and the doctrine of equity.
- ^ Obiri-Korang P "Private international law of contract in Ghana: the need for a paradigm shift" (2017) P 8; Quansah The Ghana Legal System (2011) P 51
- ^ The Bond was a pact between the British and some chiefs from the southern states of the Gold Coast under which British protection was extended to the signatories in exchange for judicial authority over them.
- ^ See, generally, Benion The Constitutional Law of Ghana (1962). Boahen, however, submits that the Bond of 1844 is not as important as held by some Ghanaian historians. He further posits that it cannot be the Magna Carta of Ghana or the basis for British rule or law – see Boahen Ghana: Evolution and Change in the Nineteenth and Twentieth Century (1975) 36.
- ^ Asante "Over a hundred years of a national legal system in Ghana: a review and critique" 1988 Journal of African Law 31 70.
- ^ This states that "the common law, the doctrines of equity, and Statutes of general application which were in force in England at the date when the colony obtained a local legislature, that is to say, on the 24th of July 1874, shall be in force within the jurisdiction of the court".
- ^ According to Article 11(2) of Ghana's Constitution, the common law of Ghana shall comprise the rule of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law, including those determined by the Superior Court of Judicature.
Notelist
- ^ Hadley v Baxendale (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute)
- ^ See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (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); 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 see National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law)
- ^ In the words of Justice Robert H. Jackson: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."[124]
Further reading
- Barrington, Candace; Sobecki, Sebastian (2019). The Cambridge Companion to Medieval English Law and Literature. Cambridge: Cambridge University Press. S2CID 242539685. Chapters 1–6.
- Bayern, Shawn (2023). Principles and Possibilities in Common Law. Eagan, MN: West Academic Publishing. ISBN 9781685612429.
- Crane, Elaine Forman (2011). Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America. Ithaca, NY: Cornell University Press. ISBN 9780801477416.
- Eisenberg, Melvin Aron (1991). The Nature of the Common Law. Boston, MA: Harvard University Press. ISBN 978-0674604810.
- Friedman, Lawrence Meir (2005). A History of American Law (3rd ed.). New York: Simon and Schuster. ISBN 978-0-7432-8258-1.
- Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: ISBN 978-0-19-514236-5.
- Glenn, H. Patrick (2000). Legal Traditions of the World. Oxford University Press. ISBN 978-0-19-876575-2.
- ISBN 978-0-85423-165-2.
- ISBN 978-0-7355-6290-5.
- Jain, M.P. (2006). Outlines of Indian Legal and Constitutional History (6th ed.). Nagpur: Wadhwa & Co. ISBN 978-81-8038-264-2.
- ISBN 0231129947
- Milsom, S.F.C., Historical Foundations of the Common Law (2nd ed.). Lexis Law Publishing (Va), (1981) ISBN 0406625034
- Morrison, Alan B. (1996). Fundamentals of American Law. New York: Oxford University Press. ISBN 978-0-19-876405-2.
- Nagl, Dominik (2013). No Part of the Mother Country, but Distinct Dominions – Law, State Formation and Governance in England, Massachusetts and South Carolina, 1630–1769. Berlin: LIT. ISBN 978-3-643-11817-2. Archived from the originalon 12 August 2016. Retrieved 30 September 2015.
- Potter, Harry (2015). Law, Liberty and the Constitution: a Brief History of the Common Law. ISBN 978-1-78327-011-8.
- OCLC 1384458.
External links
- The History of the Common Law of England, and An analysis of the civil part of the law, Matthew Hale
- The History of English Law before the Time of Edward I, Pollock and Maitland
- Select Writs. (F.W.Maitland)
- Common-law Pleading: its history and principles, R.Ross Perry, (Boston, 1897)
- The Common Law by Oliver Wendell Holmes Jr. at Project Gutenberg; also available at The Climate Change and Public Health Law Site
- The Principle of stare decisis American Law Register
- The Australian Institute of Comparative Legal Systems Archived 28 January 2011 at the Wayback Machine
- The International Institute for Law and Strategic Studies (IILSS) Archived 9 August 2018 at the Wayback Machine
- New South Wales Legislation
- Historical Laws of Hong Kong Online – University of Hong Kong Libraries, Digital Initiatives
- Maxims of Common Law from Bouvier's 1856 Law Dictionary
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