Common law is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Common law is deeply rooted in the principle of stare decisis ("to stand by [things] decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.
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 Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law" , 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. Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
Terminology and definitions The term 'common law' has multiple distinct but related meanings. First, initially, following the Norman Conquest, the 'common law' referred to the law common to the King of England's courts, as distinct from the courts administered in local courts. Secondly, as such, term 'common law' later came to be synonymous with judge-made laws, as distinct from statutory law. Third, further, as the British Empire expanded, colonies that adopted the 'common law' judicial procedures and systems came to be known as 'common law' legal systems, as distinct from 'civil law' ones. Fourth, separately, during the late medieval period in England, a distinct set of equitable laws began to be administered by another court system, namely, the Court of Chancery. In common-law jurisdictions that have merged the two court systems, equity remains as a set of distinct legal rules, separate from the 'common law' historically administered by the common-law courts. Fifth, even after the abolition of the distinct equitable and legal court systems, England retains ecclesiastical courts that have legal jurisdiction over certain issues pertaining to religion, and 'common law' may be used to describe the laws distinct from those administered in these courts.
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".
According to William Blackstone this unwritten law derived its authority from immemorial usage and "universal reception throughout the kingdom".Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769).Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p. 15876. While its 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".
More specifically, in modern usage, this is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era.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. 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.
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.Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007). 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.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)
Common law evolves Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986). Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
In contrast to common law incrementalism, the legislative process may be difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving a committee system, debate, a potential conference committee, voting, and approval by a head of state. Because of the involved process, many pieces must fall into place in order for it to be passed.
Decline of Latin 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", 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:The Common Law
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. Statutes and written constitutions are generally understood to supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are contract lawE. 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.") and the law of torts.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). 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. As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 (1993):
As another example, the Supreme Court of the United States in 1877,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.") 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 US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
Stability 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. As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right."Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). This ability to predict gives more freedom to come close to the boundaries of the law.See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law " (2006).