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{{Short description|Law created by judicial precedent}}
'''Common law''' has three distinct meanings: the common law legal system, as contrasted with the ] legal system; common law, as contrasted with ]; and common law, as contrasted with ].
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{{distinguish|Jus commune{{!}}''Jus commune''}}
{{Webarchive|url=https://web.archive.org/web/20160722022209/http://www.juriglobe.ca/eng/syst-onu/index-alpha.php |date=22 July 2016 }}, Website of the Faculty of Law of the University of Ottawa</ref>]]
'''Common law''' (also known as judicial '''precedent''', judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes.<ref name="GarnerUsageDef0">{{cite book |last=Garner |first=Bryan A. |url=https://archive.org/details/dictionaryofmode00garn_0 |title=A Dictionary of Modern Legal Usage |publisher=] |year=2001 |isbn=9780195077698 |edition=2nd |location=New York |page= |quote="common law. A. As Noun—in Broad Contrasts. 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 originally in England, common law is contrasted by comparative jurists to civil law, q.v. Second, 'with the development of equity and equitable rights and remedies, common law and equitable courts, procedure, rights, remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity' (OCL). Third, the term is similarly distinguished from ecclesiastical law. Fourth, it is occasionally used to denote the law common to the country as a whole-as distinguished from law that has only local applications. Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law <statutes in derogation of the common law are to be strictly construed>." |url-access=registration |orig-year=1995}}</ref><ref>{{Cite web |title=common law |url=https://www.law.cornell.edu/wex/common_law |access-date=2024-11-27 |website=LII / Legal Information Institute |language=en |quote="Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law."}}</ref> Although common law may incorporate certain ], it is largely based on ]—judicial rulings made in previous similar cases.<ref name="Civil Law">{{cite web |year=2016 |title=The Common Law and Civil Law Traditions |url=https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf |url-status=live |archive-url=https://web.archive.org/web/20241122081109/https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf |archive-date=2024-11-22 |access-date=24 November 2024 |publisher=Berkeley Law |quote="Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge."}}</ref> The presiding judge determines which precedents to apply in deciding each new case.<ref name="Civil Law" />


Common law is deeply rooted in ] ("to stand by things decided"), where courts follow precedents established by previous decisions.<ref name="decisis">{{Cite web |title=stare decisis |url=https://www.law.cornell.edu/wex/stare_decisis |url-status=live |archive-url=https://web.archive.org/web/20241124200714/https://www.law.cornell.edu/wex/stare_decisis |archive-date=2024-11-24 |access-date=2024-11-27 |website=LII / Legal Information Institute |language=en |quote="Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority."}}</ref> When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.<ref name="decisis" /> However, in a "]" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.<ref>{{Cite web |title=Marbury v. Madison, 5 U.S. 137 (1803) |url=https://supreme.justia.com/cases/federal/us/5/137/#tab-opinion-1958607 |access-date=2024-11-27 |website=Justia Law |language=en |quote="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."}}</ref><ref>{{Cite web |title=case of first impression |url=https://www.law.cornell.edu/wex/case_of_first_impression |access-date=2024-11-27 |website=LII / Legal Information Institute |language=en |quote="A case of first impression is a case that presents a legal issue that has never been decided by the governing jurisdiction. ... A case of first impression lacks controlling precedent. In other words, a court deciding a case of first impression cannot rely on prior decisions nor is the court bound by stare decisis. To adopt the most persuasive rule of law, courts will look to various sources for guidance."}}</ref>
The common law originally developed under the auspices of the ] in historical ] from judicial decisions that were based in tradition, custom, and ]. The form of reasoning used in common law is ]. Common law may be unwritten or written in ]s or codes. The common law, as applied in civil cases (as distinct from ] cases), was devised as a means of ] someone for wrongful acts known as ]s, including both intentional torts and torts caused by ].


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 ] in 1066.{{sfnp|Langbein|Lerner|Smith|2009|p=4}}<ref name="CL Def">{{Cite web |date=2024-11-26 |title=Common law {{!}} Definition, Origins, Development, & Examples {{!}} Britannica |url=https://www.britannica.com/topic/common-law |access-date=2024-11-28 |website=www.britannica.com |language=en}}</ref> It established a unified legal system, gradually supplanting the local folk courts and ].<ref name="CL Def" />{{sfnp|Langbein|Lerner|Smith|2009|p=4}} England spread the English legal system across the British Isles, first to Wales, and then to Ireland and ]; this was continued by the later ]. Many former colonies retain the common law system today. These common law systems are ] that give great weight to judicial precedent, and to the style of reasoning inherited from the ] legal system.<ref name="Blacks10thDef2">{{cite book |title=Black's Law Dictionary – Common law |date=2014 |edition=10th |page=334 |quote=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...}}</ref><ref name="GarnerUsageDef1">{{cite book |last=Garner |first=Bryan A. |url=https://archive.org/details/dictionaryofmode00garn_0 |title=A Dictionary of Modern Legal Usage |publisher=] |year=2001 |isbn=9780195077698 |edition=2nd, revised |location=New York |quote="common law" is contrasted by comparative jurists to civil law. |url-access=registration}}</ref><ref>Washington Probate, "Estate Planning & Probate Glossary", ''Washington (State) Probate'', {{Webarchive|url=https://wayback.archive-it.org/all/20170525183721/http://www.wa-probate.com/Intro/Estate-Probate-Glossary.htm|date=25 May 2017}}, 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."</ref><ref>Charles Arnold-Baker, ''The Companion to British History'', s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.</ref> Today, approximately one-third of the world's population lives in common law jurisdictions or in ] that integrate common law and ].<ref>{{Cite web |title=Juriglobe |url=http://www.juriglobe.ca/eng/syst-onu/index-alpha.php |url-status=live |archive-url=https://web.archive.org/web/20241102053346/https://www.juriglobe.ca/eng/syst-onu/index-alpha.php |archive-date=2024-11-02 |access-date=2024-11-28 |website=www.juriglobe.ca}}</ref>
Before the institutional stability imposed on England by ] in ], English citizens were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, ]s generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other "test" of veracity. If the ]'s wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.


== Terminology ==
In ], ] became the first ] king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a ] system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its ] through evaluating common local knowledge, not necessarily through the presentation of ], a distinguishing factor from today's civil and criminal court systems.
According to ''],'' common law is "the body of law derived from ], rather than from ]s or ]s."<ref name="BlacksLawDict">{{cite book|title=Black's Law Dictionary – Common law|date=2014|edition=10th|page=334}}</ref> Legal systems that rely on common law as ] are known as "common law jurisdictions."<ref name="BlacksLawDict" /><ref name="GarnerUsageDef1">{{cite book |last=Garner |first=Bryan A. |url=https://archive.org/details/dictionaryofmode00garn_0 |title=A Dictionary of Modern Legal Usage |publisher=] |year=2001 |isbn=9780195077698 |edition=2nd, revised |location=New York |quote="common law" is contrasted by comparative jurists to civil law. |url-access=registration}}</ref>


Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. Well into the 19th century, common law was still defined as "unwritten law" (''lex non scripta'') in legal dictionaries including '']'' and '']''.<ref name="Blacks10thDefRemoved">{{cite book|title=Black's Law Dictionary – Common law|date=2014|edition=10th|page=334 |quote="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"}}</ref> According to ]'s declaratory theory the common law reaffirmed pre-existing customs but did not make new law. The term "judge-made law" was introduced by ] as a criticism of this pretense of the legal profession.<ref name="CarpenterColumbiaCourtDecisions">{{cite journal |last=Carpenter |first=Charles E. |year=1917 |title=Court Decisions and the Common Law |journal=Columbia Law Review |volume=17 |issue=7 |pages=593–607 |jstor=1112172}} (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.")</ref>
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of ] (church) courts, brought him (and England) into conflict with the church, most famously, with ], the ]. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.


Many notable writers, including ], ], ], ], ], and ], eventually adopted the modern definition of common law as "case law" or ''],'' which serves as binding ].<ref name="CarpenterColumbiaCourtDecisions" />
By the ], the judicial system recognized that certain wrongs, such as ], were not susceptible of compensation because the wronged person didn't care about the money but wanted his land back (trespass) or the benefit of his bargain (that house he agreed to purchase), and mere compensation could not make him whole. From this, courts of ] developed in England with a purpose of doing what was fair ("equitable"), and through these courts one could force the wrongdoer to sell him that house or get off his land (or go to jail if he still refused). In England, courts of law and equity were combined in 1875, and the roles of the advocates appearing before them were amalgamated into one -- a ]. ]s also operate in some common law courts. These systems of law (providing money ]s) and equity (fashioning a remedy to fit the situation) continued as parallel systems and courts well into the ] in most courts in the ]: In the ]s there is no separation between law and equity; ] still has separate courts of law and equity, and in many ]s there are separate divisions for law and equity within one court.


== Basic principles of common law ==
The common law constitutes the basis of the legal systems of: the ] (except ]), the ] (except ]), ] (except ]), ], ], ], ], ], and many other countries. (Basically, every country which has been colonised at some time by ].)


=== Common law adjudication ===
The main alternative to the common law system is the ] system, which is used in ], ], ], the former ] bloc, and most of the rest of the world. ] is often said to use the civil law but in fact it has a unique system which combines elements of the civil law and of the common law.


In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation.<ref>Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007) </ref> 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.<ref>''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)</ref> Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.
Statutes which reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from pre-existing ] and custom.


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 ], and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by ] are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, ], ] and ] also give rise to considerable complexity.
By contrast, some laws are purely statutory, and may create a new ]. An example of this would be the ] of ], which allows certain persons, usually a ] or child or ], to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any state that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly - that is, limited to their precise terms - because they have no common law precedent for guidance.


=== Common law evolves to meet changing social needs and improved understanding {{anchor|CL_Common_Law_Evolves}} ===
Where a tort is grounded in common law, then all damages traditionally recognized historically for that tort may be sued for, whether mentioned in current statutory law or not. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. An old saw (in states with no or low wrongful death damages) stated that it was better to back up and over the person to insure his death and limit your exposure!
{{Original research section|date=February 2024}}
] 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".<ref>Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).</ref> ] noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "ts method is inductive, and it draws its generalizations from particulars".<ref>Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).</ref>


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 ]. Second, the common law evolves through a series of ], 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.<ref>The beneficial qualities of the common law's incrementalist evolution was most eloquently expressed by the future ], then Solicitor General Murray, in the case of ''Omychund v. Barker'', who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an ]". I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)</ref> In contrast to common law incrementalism, the legislative process is very 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 the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.<ref>{{Cite web |title=The Legislative Process |url=https://www.geron.org/Advocacy/How-to-Advocate-for-Aging-Issues/The-Legislative-Process |access-date=2024-06-12 |website=www.geron.org}}</ref>
The definitive treatise on the common law is ''Commentaries on the Laws of England'', written by Sir ] and first published in ] - ]. Since ] a facsimile edition of that first edition has been available in four paper-bound volumes.

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 (]). 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, '']'',<ref>''Winterbottom v. Wright'', 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)</ref> 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 '']'',<ref>, 6 N.Y. 397 (N.Y. 1852)</ref> 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.''<ref>''Statler v. Ray Mfg. Co.'', 195 N.Y. 478, 480 (N.Y. 1909)</ref> 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''<ref>''Cadillac Motor Car Co. v. Johnson'', 221 F. 801 (2nd Cir. 1915)</ref> (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".<ref>{{Cite web |title=Johnson v. Cadillac Motor Car Co. |url=https://case-law.vlex.com/vid/johnson-v-cadillac-motor-895212692 |access-date=2024-09-03 |website=vLex |language=en}}</ref>

Finally, in the famous case of '']'',<ref>, 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)</ref> in 1916, ] for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to ''Cadillac'' a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

{{Blockquote|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 '']'', that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that ''some'' boundary is necessary, '']'' overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.

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.<ref name="SpeiserLawOfTorts" /> (b) The ] 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 ===

In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and ].<ref name="Civil 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.<ref name="BostonSocialLawCommonOrCivil">Social Law Library, ''Common Law or Civil Code?'', Boston, Massachusetts.</ref> The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function ]. ] 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 ] existing common law, create new ] that did not exist in the common law,{{efn|''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)}} or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are ]<ref>E. Allen Farnsworth, Farnsworth on Contracts, §&nbsp;1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions the dominant primary source of contract law.")</ref> and the ].<ref name="SpeiserLawOfTorts">Stuart Speiser, et al., The American Law of Torts, §§&nbsp;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 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).</ref>

===="Legislating from the bench"====

At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what ] described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of ].<ref name=popkin/><ref name=interpretation>{{cite journal |last1=Pound |first1=Roscoe |title=Spurious Interpretation |journal=Columbia Law Review |date=1907 |volume=7 |issue=6 |pages=381 |doi=10.2307/1109940 |jstor=1109940 |quote=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.}}</ref>

] 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.<ref>{{cite journal |last1=Pound |first1=Roscoe |title=What of Stare Decisis? |journal=Fordham Law Review |date=1941 |volume=10 |issue=1}}</ref> ] once dissented: "judges do and must legislate".<ref>''Southern Pacific Co. v. Jensen'', 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).</ref>

====Statutory construction====

There is a controversial legal maxim in American law that "]". ] once wrote that the canon "no longer has any foundation in reason". It is generally associated with the ].<ref>{{cite book |last1=Popkin |first1=William |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=97}}</ref>

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 ] to reach decisions.<ref name=popkin/> As the United States Supreme Court explained in ''United States v Texas'', 507 U.S. 529 (1993):{{primary inline|date=February 2024}}

{{blockquote |text=Just as longstanding is the principle that "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 ] in 1877,<ref>''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.")</ref> held that a ] statute that established rules for ] of marriages did not abolish pre-existing ], 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 ], of legislative statutes, and of ], and the application of law to specific facts.<ref>{{Cite web |title=Common Law – Atlas of Public Management |url=https://www.atlas101.ca/pm/concepts/common-law/ |access-date=2024-02-02 |language=en-US}}</ref>

=== Overruling precedent—the limits of ''stare decisis'' ===
The ] are divided into twelve regional circuits, each with a ] (plus a thirteenth, the ], 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.<ref>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 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).</ref> In these courts, the older decision remains controlling when an issue comes up the third time.

Other courts, for example, the ] (formerly known as Court of Customs and Patent Appeals) and the ], 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 ] and of ], since 2009, the ] 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 ] 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 ], granted by the Practice Statement of 1966.<ref>83 Cr App R 191, 73 Cr App R 266</ref>

Canada's federal system, described ], avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.

=== Common law as a foundation for commercial economies ===
{{Further|Intracorporate Conspiracy Doctrine}}
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.<ref name="LawGovPol">{{cite web| url = https://lawgovpol.com/common-law-advantages-disadvantages| title = LawGovPol, ''Common law: advantages and disadvantages''}}</ref> As ] famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right."<ref>''Burnet v. Coronado Oil & Gas Co.'', 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).</ref> This ability to predict gives more freedom to come close to the boundaries of the law.<ref>See, e.g., ], " {{Webarchive|url=https://web.archive.org/web/20070502093747/http://www.singaporelaw.sg/content/SomeDifferences.html |date=2007-05-02 }}" (2006).</ref> For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their ] rights apply.

In contrast, in jurisdictions with very weak respect for precedent,<ref>For example, the ] 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.</ref> fine ] 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.<ref name=LawGovPol /> 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<ref name="EisenbergMillerNewYork" /> for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States.<ref name="EisenbergMillerNewYork">Theodore Eisenberg & Geoffrey P. Miller (2008). . New York University Law and Economics Working Papers. Paper 124, {{Webarchive|url=https://web.archive.org/web/20110401145941/http://lsr.nellco.org/nyu_lewp/124/ |date=1 April 2011 }} (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).</ref> Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware ], and American contracts relating to corporate law issues (] of companies, rights of shareholders, and so on) include a Delaware ] clause, because of the deep body of law in Delaware on these issues.<ref>Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract— 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.")</ref> On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law.<ref>Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.</ref> Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result.

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 ] cases.<ref>{{cite news| url=https://www.independent.co.uk/news/uk/home-news/london-becomes-litigation-capital-of-the-world-1031231.html | location=London | work=The Independent | first=Richard | last=Osley | title=London becomes litigation capital of the world | date=23 November 2008}} 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 ] of 2010, thus making England and Wales a less attractive forum for such cases.</ref>

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 ==
{{See also|English law}}

=== Origins ===
The common law{{mdash}}so named because it was "common" to all the king's courts across England{{mdash}}originated in the practices of the courts of the English kings in the centuries following the ] in 1066.{{sfnp|Langbein|Lerner|Smith|2009|p=4}} Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various ] and ].{{sfnp|Langbein|Lerner|Smith|2009|p=4}} A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.{{sfnp|Langbein|Lerner|Smith|2009|p=4}} The degree to which common law drew from earlier ] traditions such as the ], ], the penalty of ], and ] {{ndash}} all of which were incorporated into the Norman common law {{ndash}} is still a subject of much discussion. Additionally, the ] operated its own court system that adjudicated issues of ].{{sfnp|Langbein|Lerner|Smith|2009|p=4}}

The main sources for the history of the common law in the Middle Ages are the ] and the ]. 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 ], 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).<ref>Documents from Medieval and Early Modern England from the National Archives in London. {{Webarchive|url=https://web.archive.org/web/20160306122827/http://aalt.law.uh.edu/|date=6 March 2016}} Publications of the ] 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. </ref><ref>One history of the law before the Norman Conquest is ] and ], ''The History of English Law before the Time of ]'', .</ref>

The doctrine of precedent developed during the 12th and 13th centuries,<ref>{{cite journal |last=Jeffery |first=Clarence Ray |year=1957 |title=The Development of Crime in Early English Society |journal=Journal of Criminal Law, Criminology, and Police Science |volume=47 |issue=6 |pages=647–666|doi=10.2307/1140057 |jstor= 1140057 |url=https://scholarlycommons.law.northwestern.edu/jclc/vol47/iss6/2 }}</ref> as the collective judicial decisions that were based in tradition, ] and ].<ref>Winston Churchill, ''A History of the English Speaking Peoples'', Chapter 13, ''The English Common Law''</ref>

The form of reasoning used in common law is known as ] or ]. The common law, as applied in ]s (as distinct from ]s), was devised as a means of ] someone for wrongful acts known as ]s, including both ]s and torts caused by ], and as developing the body of law recognizing and regulating ]s. The type of ] practiced in common law courts is known as the ]; this is also a development of the common law.

=== Medieval English common law ===
] in the ], ], early 19th century]]

In 1154, ] became the first ] king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a ] system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its ] through evaluating common ], not necessarily through the presentation of ], a distinguishing factor from today's civil and criminal court systems.

At the time, royal government centered on the '']'' (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of ], the ], and ]. Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter.<ref name="Legal">{{Cite book|last=Baker|first=John|url=http://www.oxfordscholarship.com/view/10.1093/oso/9780198812609.001.0001/oso-9780198812609|title=Introduction to English Legal History|date=2019-03-21|publisher=Oxford University Press|isbn=978-0-19-881260-9|edition=5|language=en|doi=10.1093/oso/9780198812609.001.0001}}</ref> The king's itinerant justices would generally receive a ] or commission under the great seal.<ref name="Legal" /> They would then resolve disputes on an ] basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as ''stare decisis'' (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law".

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.<ref>''Croniques de London'' (Camden Soc., 1844), pp. 28–9.</ref><ref name="Legal" /> 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.<ref name="Legal" /> There were complaints of the ''eyre'' of 1198 reducing the kingdom to poverty<ref>''Chronica Rogeri de Houedene'' (RS, 1871), IV, p. 62.</ref> and ] fleeing to escape the eyre of 1233.<ref>''Annales Monastici'' (RS, 1864–69), III, p. 135.</ref>

Henry II's creation of a powerful and unified court system, which curbed somewhat the power of ] (church) courts, brought him (and England) into conflict with the church, most famously with ], the ]. 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 ] in which the King swore to go on crusade as well as effectively overturned the more controversial clauses of the ]. 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 ] was established after ] 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 ], permanently except in the vacations between the four terms of the ].

Judge-made common law operated as the primary source of law for several hundred years, before ] acquired legislative powers to create ]. In England, judges have devised a number of rules as to ]. The early development of case-law in the thirteenth century has been traced to ]'s ''On the Laws and Customs of England'' and led to the yearly compilations of court cases known as ], of which the first extant was published in 1268, the same year that Bracton died.<ref>], ''A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260–261''</ref> The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.<ref>{{cite web| url = http://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/| title = BUSL, ''Legal History: The Year Books''}}</ref><ref>Cambridge History of English and American Literature ''The Year Books and their Value''</ref>

=== 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 ] in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.<ref>E.g., R. C. van Caenegem, ''The Birth of the English Common Law'' 89–92 (1988).</ref> However, the first common law scholars, most notably ] and ], as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.<ref>E.g., ], Grant McLeod, ''Justinian's Institutes'' 7 (1987).</ref> One of the first and throughout its history one of the most significant treatises of the common law, Bracton's ''De Legibus et Consuetudinibus Angliae'' (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's '']''.<ref>E.g., George E. Woodbine (ed.), ] (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).</ref> The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into '']'' (typically, actions against a ''thing'' or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and '']'' (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's ''Commentaries on the Laws of England'',<ref>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.</ref> and Roman law ideas regained importance with the revival of academic law schools in the 19th century.<ref>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).</ref> As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent ]) can be found in the civil law as well as in the common law.<ref>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.</ref>

===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.<ref name="CarpenterColumbiaCourtDecisions" /> 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.<ref name="CarpenterColumbiaCourtDecisions" />

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."<ref name=WestEnc>{{cite book |last1=Lehman |first1=Jeffrey |last2=Phelps |first2=Shirelle |title=West's encyclopedia of American law, Volume 3 |date=2005 |publisher=Thomson/Gale |location=Detroit |isbn=9780787663704 |page=30 |edition=2nd |mode=cs2<!--to fit this into a sentence-->}}</ref>

=== Coke ===

The first attempt at a comprehensive compilation of centuries of common law was by Lord Chief Justice ], in his treatise, '']'' 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.{{'"}}<ref>James R. Stoner, Jr., ( is a professor of political science, not law)</ref>

=== Blackstone ===

According to ] the unwritten law derived its authority from immemorial usage and 'universal reception throughout the kingdom'<ref>Sir William Blackstone (1723–1780) in his ''Commentaries on the Laws of England'' (1765–1769)</ref><ref name=congress>Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p 15876</ref> 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".<ref name=congress/>

More specifically, in modern usage, this is understood to mean law that is made by judges, not the ] of Blackstone's era.<ref name=interpretation /><ref>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.</ref>

=== 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.<ref>{{cite book |last1=Gearey |first1=Adam |last2=Morrison |first2=Wayne |last3=Jago |first3=Robert |title=The Politics of the Common Law: Perspectives, Rights, Processes, Institutions |date=2013 |publisher=Taylor & Francis |page=115}}</ref><ref>{{cite book |last1=Postema |first1=Gerald |title=Bentham and the Common Law Tradition |url=https://academic.oup.com/book/35287/chapter-abstract/299899893?redirectedFrom=fulltext |doi=10.1093/oso/9780198793052.003.0006}}</ref>

=== Propagation of the common law to the colonies and Commonwealth by reception statutes ===

{{anchor|CL_Reception_Statutes}}A ] is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the ] or ] of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of ], have either implemented reception statutes or adopted the common law by judicial opinion.<ref>Edited {{Dead link|date=December 2023 |bot=InternetArchiveBot |fix-attempted=yes }} (Westview Press, 1996), pg. 10</ref>

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 ] article.

Yet, adoption of the common law in the newly independent United States 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.<ref name=BostonSocialLawCommonOrCivil /> 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.<ref name=BostonSocialLawCommonOrCivil /> 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 on the high monarchical system become the Common Law of this Commonwealth... may hereafter have a very unsocial purpose."<ref name=BostonSocialLawCommonOrCivil />

For several decades after independence, English law still exerted influence over American common law—for example, with '']'' (1863), which first applied the ] doctrine.

=== Decline of Latin maxims and "blind imitation of the past", and adding flexibility to ''stare decisis'' {{Anchor|History_and_Holmes}} ===
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, "]" (see ]), 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 ], 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. ] in his famous article, "The Path of the Law",<ref>{{cite journal|volume=10 |journal=Harvard Law Review |pages=457–478 |year=1897|url=http://www.gutenberg.org/ebooks/2373|title=The Path of the Law|first=Oliver Wendell Jr. |last=Holmes|doi=10.2307/1322028|issue=8|jstor=1322028 }}</ref> 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:<ref>] {{cite web| url = https://archive.org/details/commonlaw00holmuoft| title = O. W. Holmes, Jr., ''The Common Law''| year = 1882}}</ref>

{{blockquote|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 ] 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 ] and corollaries of a book of mathematics.}}

In the early 20th century, ], later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in ], and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.

Reliance on old maxims is now deprecated.<ref>''Acree v. Republic of Iraq'', 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).</ref> Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like.<ref>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.</ref> 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.<ref>], 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)</ref>

=== 1870 through 20th century, and the procedural merger of law and equity ===
<!-- "Fusion of law and equity" redirects here. Please edit redirect if changing the name of this section header -->
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 ]) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of ], administered by the ], in the courts of ]. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other,<ref>{{harvnb|Salmond|1907|p=34}}</ref> 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 ] by the ] of 1873 and 1875, with equity prevailing in case of conflict.<ref>Lobban, Michael "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II | year=2004 | work=Law and History Review, 2004 (University of Illinois Press) . {{ISSN|0738-2480}}.</ref>

In the United States, parallel systems of ] (providing money ], with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The ] procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new ] combined ] and equity into one form of action, the "civil action". Fed.R.Civ.P. {{frcp|2}}. The distinction survives to the extent that issues that were "common law (as opposed to equity)" as of 1791 (the date of adoption of the ]) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.<ref>E.g., ''Markman v. Westview Instruments, Inc.'', 517 U.S. 370, 376 (1996) ("e have understood that the right of trial by jury thus preserved is the right which existed under the English ] 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 ] 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)</ref>

The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided courts of law and courts of chancery, for example, the ]. 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 ], and required very careful drafting of the opening pleading (called a ]) to slot into exactly one of them: ], ], ], special ], general assumpsit, ], ], ], case (or ]), and ].<ref>F. W. Maitland, ''The Forms of Action at Common Law'', 1909, , {{Webarchive|url=https://web.archive.org/web/20160622144219/http://legacy.fordham.edu/halsall/basis/maitland-formsofaction.asp |date=22 June 2016 }} or John Jay McKelvey, Principles of Common Law Pleading (1894) or ], ], ], ] and other writers named in the preface of Perry's (Boston, 1897) or Koffler and Reppy, 1969, </ref> 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.<ref>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.</ref> A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.<ref>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".</ref> 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.<ref>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".</ref>

== Comparison with civil law ==

=== Civil law systems ===
{{main|Civil law (legal system)}}

]

Common law is usually contrasted with the ] system, which is used in ], most of ] and ], and some African countries including ] and the ] countries of the ] and west Africa.<ref>{{Cite book| last1 = Obeid| first1 = Nayla Comair| last2 = Brekoulakis| first2 = Stavros| title = The Plurality and Synergies of Legal Traditions in International Arbitration: Looking Beyond the Common and Civil Law Divide |publisher = Kluwer Law International B.V.| isbn = 978-94-035-2911-0| date = 2024-02-20}}</ref>

Common law systems trace their history to the English common law, while civil law systems trace their history through the Napoleonic Code back to the {{lang|la|]}} of ].<ref>{{cite web|url=http://www.radford.edu/~junnever/law/commonlaw.htm|title=Description and History of Common Law|access-date=14 March 2017|archive-date=28 February 2017|archive-url=https://web.archive.org/web/20170228123015/http://www.radford.edu/~junnever/law/commonlaw.htm|url-status=dead}}</ref><ref>{{cite web|url=https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|title=The Common Law and Civil Law Traditions|access-date=11 June 2016|archive-url=https://web.archive.org/web/20160422031516/https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|archive-date=22 April 2016|url-status=dead}}</ref>

==== Role of precedent and judicial review====

The primary contrast between the two systems is the role of written decisions and precedent as a source of law (one of the defining features of common law legal systems).<ref name=LawGovPol /><ref name="BlacksLawDict"/>
While Common law systems place great weight on precedent, <ref>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". {{cite BAILII |litigants=Robinson v Chief Constable of West Yorkshire Police |year=2018 |court=UKSC |num=4 |pinpoint=para. 21}}</ref> civil law judges tend to give less weight to judicial precedent.<ref>{{cite journal |last1=Garoupa |first1=Nuno |last2=Liguerre |first2=Carlos Gomez |title=The Syndrome of the Efficiency of the Common Law |journal=Boston University International Law Journal |date=2011 |volume=29 |page=298}}</ref> For example, the ] expressly forbade French judges to pronounce general principles of law.<ref>"5. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them." </ref>

In some civil law jurisdictions the judiciary does not have the authority to ].<ref> In the common talk among lawyers, it has even been said that in the Civil Law system legislators are almost like gods, and judges not even men."</ref> For example, after the fall of the ] the Armenian Parliament, with substantial support from ], adopted new legal codes. Some of the codes introduced problems which the judiciary was not empowered to adjudicate under the established principles of the common law of contracts - they could only apply the code as written.<ref name=usaid>"In some cases, according to some expert observers, important principles were not included in the legislation because the drafters, not having any experience in commerce, could not appreciate the importance of the principles and the advisors could not convince them of the necessity of certain principles. For example, under legislation adopted, boards of directors can be held criminally and civilly liable if the corporation does not turn a profit, not exactly a great incentive to risk taking. It illustrates the difficulty of changing societal norms. At the same time, in deciding commercial cases, the judges are not to examine the prevailing practices regarding what agreements mean within the trade at the time the contract was entered into, a fundamental concept in western commerce and judicial practice." </ref><ref>{{Cite journal| title = The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems |journal=Indiana Journal of Global Legal Studies| access-date = 2024-05-10| url = https://ijgls.indiana.edu/volume-11-number-1/the-advantages-of-the-civil-law-judicial-design-as-the-model-for-emerging-legal-systems/}}</ref>

There is no doctrine of '']'' in the French civil law tradition. Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack authority to act if there is no statute.<ref>''The Common Law and Civil Law Traditions'', Robbins Collection, University of California at Berkeley. {{Webarchive|url=https://web.archive.org/web/20160422031516/https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html|date=22 April 2016}}</ref> There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.<ref>{{cite journal |title=An Introduction to Law in French-Speaking Africa |journal=The Journal of Modern African Studies |date=1971 |volume=9 |issue=2 |doi=10.1017/S0022278X00025064 |url=https://www.cambridge.org/core/journals/journal-of-modern-african-studies/article/abs/an-introduction-to-law-in-frenchspeaking-africa-volume-i-africa-south-of-the-sahara-by-jeswald-w-salacuse-charlottesville-the-michie-company-1969-pp-xxii-616-20/8AEEC417BAA2D98EC42D82379D47403D}}</ref>

==== Adversarial system vs. inquisitorial system ====
] 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.<ref name="LawteacherInquisitorialAdversarial">{{cite web|url=https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php|title=Inquisitorial And Adversarial System Of Law|website=lawteacher.net}}</ref><ref name="PortsmouthAdversarialInquisitory">{{cite web|url=http://compass.port.ac.uk/UoP/file/c7ffec37-0632-475f-84ba-ae018a2f0f38/1/Types_of_law_IMSLRN.zip/page_10.htm|title=Types of Legal System: Adversarial v. Investigatory Trial Systems|last=LangstoT|website=compass.port.ac.uk|access-date=17 November 2017|archive-url=https://web.archive.org/web/20171125130415/http://compass.port.ac.uk/UoP/file/c7ffec37-0632-475f-84ba-ae018a2f0f38/1/Types_of_law_IMSLRN.zip/page_10.htm|archive-date=25 November 2017|url-status=dead}}</ref>

Common law courts usually use an ], in which two sides present their cases to a neutral judge.<ref name="LawteacherInquisitorialAdversarial" /><ref name="PortsmouthAdversarialInquisitory" /> 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 ] systems, criminal proceedings proceed under an ] 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.<ref name="LawteacherInquisitorialAdversarial" /><ref name="PortsmouthAdversarialInquisitory" /> 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|date=December 2023|reason=Should be a source that demonstrates judges are biased}} 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."<ref>United States v. Sineneng-Smith, No. 19–67 (7 May 2020)</ref> 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 ]s from non-parties. One of the most notable such cases was '']'', a 1938 case in which neither party questioned the ruling from the 1842 case '']'' that served as the foundation for their arguments, but which led the Supreme Court to overturn ''Swift'' during their deliberations.<ref name="duke party presentation">{{cite journal | title = The Limits of Advocacy | first = Amanda | last = Frost | date = 2009 | journal = Duke Law Journal | volume= 59 | issue =3 | pages = 447–518 | url = https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1032&context=facsch_lawrev }}</ref> To avoid lack of notice, courts may invite briefing on an issue to ensure adequate notice.<ref>the appendix to the ''Sineneng-Smith'' opinion gives an extensive catalog of cases in which the Court permissibly sought outside briefing.</ref> However, there are limits—an appeals court may not introduce a theory that contradicts the party's own contentions.<ref>See '']'' and '']''</ref>

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.

==== Convergence of common law and civil law ====
The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of ] (similar to ] but not binding) in civil law countries, and the growing importance of ] in common law countries.

Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as ], ], ], banking regulation, securities, and tax law.<ref name="Best of Both">{{cite web |last=Funken |first=Katja |date=July 2003 |title=The Best of Both Worlds - The Trend Towards Convergence of the Civil Law and the Common Law System |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=476461 |access-date=29 November 2024 |website=SSRN}}</ref>{{rp|pages=|style=AMA|page=5}} In the United States, the ] (UCC) is an example of a codified framework governing various aspects of commercial law.<ref name="Best of Both" />{{rp|pages=|style=AMA|page=6}} Widely regarded as one of the most significant developments in American law, the UCC has been enacted, with some local variations, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.<ref>{{Cite web |title=Uniform Commercial Code |url=https://www.uniformlaws.org/acts/ucc |access-date=2024-11-29 |website=www.uniformlaws.org |language=en |quote="The Uniform Commercial Code (UCC) is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law. Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called 'the backbone of American commerce.'"}}</ref><ref>{{Cite web |title=Uniform Commercial Code (UCC) {{!}} Duke University School of Law |url=https://law.duke.edu/lib/research-guides/ucc/ |url-status=live |archive-url=https://web.archive.org/web/20240726101637/https://law.duke.edu/lib/research-guides/ucc/ |archive-date=2024-07-26 |access-date=2024-11-29 |website=law.duke.edu |language=en |quote="The Uniform Commercial Code (UCC), a comprehensive code addressing most aspects of commercial law, is generally viewed as one of the most important developments in American law. The UCC text and draft revisions are written by experts in commercial law and submitted as drafts for approval to the National Conference of Commissioners on Uniform State Laws (referred to as the Uniform Law Commissioners), in collaboration with the American Law Institute. The Commissioners are all attorneys, qualified to practice law, including state and federal judges, legislators and law professors from throughout the United States and its territories. These quasi-public organizations meet and decide whether to endorse the drafts or to send them back to the experts for revision. The revision process may result in several different revisions of the original draft. Once a draft is endorsed, the Uniform Law Commissioners recommend that the states adopt these rules. The UCC is a model code, so it does not have legal effect in a jurisdiction unless UCC provisions are enacted by the individual state legislatures as statutes. Currently, the UCC (in whole or in part) has been enacted, with some local variation, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands."}}</ref>

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|ECLI:EU:C:1982:335}}), in which the ] 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.

== Common law legal systems in the present day ==
=== In jurisdictions around the world ===
The common law constitutes the basis of the legal systems of:
* ] (both ] and in each of the ])
* ]
* ]
* Brunei
* ] (both ] and the ], with the exception of ])
* the Caribbean jurisdictions of Antigua and Barbuda, Barbados, ], Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago
* ]
* Ghana
* ] (Except for ] and ], which adopts civil law as a legal base.)

* ]
* ]
* ]
* Kenya
* ]
* ]
* ]
* Myanmar
* ]
* ]
* ]
* ]
* ]
* ] (in ], ], ], and ])
* United States (both the ] system and the individual ] and ], with the partial exception of ] and ])

and many other generally ] or ] countries (except ], which is ], and ]). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as ] (which follows the ] of France in part), South Africa and Sri Lanka (which follow ]), where the prior civil law system was retained to respect the ] of the local colonists. Guyana and Saint Lucia have mixed common law and civil law systems.

The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.


=== Scotland{{anchor|CL Scotland}} ===
] is often said to use the civil law system, but it has ] that combines elements of an uncodified civil law dating back to the {{Lang|la|]}} with an element of its own common law long predating the ] with England in 1707 (see ]), founded on the customary laws of the tribes residing there. Historically, ] differed in that the use of ''precedent'' was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a ''precedent'',<ref>Stair Memorial Encyclopedia</ref> and principles of ] and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a ''stare decisis'' akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same, but in many matters (particularly those of UK-wide interest), they are similar.

Scotland shares the ] 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 ] is based on '']'', a case originating in ].

Scotland maintains a separate criminal law system from the rest of the UK, with the ] being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the ] (before October 2009, final appellate jurisdiction lay with the ]).<ref>{{cite web|url=https://www.supremecourt.uk/about/role-of-the-supreme-court.html|title=Role of The Supreme Court – The Supreme Court|first=The Supreme|last=Court|website=www.supremecourt.uk}}</ref>

=== The United States – states, federal courts, and executive branch agencies (17th century on){{anchor|CL United States}} ===

==== New York (17th century)====
The original colony of ] was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was ] by the Dutch. In 1664, the colony of ] had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the ] were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers.<ref>William Nelson, Legal Turmoil in a Factious Colony: New York, 1664–1776, 38 Hofstra L. Rev. 69 (2009).</ref> When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the ] system of land holding, based on the ] and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a ] of its law in the 19th century. The only part of this codification process that was considered complete is known as the ] applying to ]. The influence of ] continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

==== Louisiana (1700s){{anchor|Louisiana (1700s)}} ====

Under ], the ], private law—that is, ] between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from ], transmitted through ] and ], 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 ], as the latter was enacted in 1804, one year after the ]. However, the two codes are similar in many respects due to common roots.

Louisiana's ] largely rests on English common law. Louisiana's ] is generally similar to the ] and other U.S. states. Louisiana's ] is generally in line with that of other U.S. states, which in turn is generally based on the U.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.<ref>{{cite web| url = https://digitalcommons.lsu.edu/cgi/viewcontent.cgi?article=1319&context=gradschool_disstheses| title = Sara Jane Sandberg, ''Women and the Law of Property Under Louisiana Civil Law, 1782–1835'' (2001)}}</ref>

==== California (1850s) ====
The ] of ] has a system based on common law, but it has ] the law in the manner of ] jurisdictions. The reason for the enactment of the ] in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other ], however, have retained the concept of ] derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case '']'', 13 Cal.3d 804 (1975), the ] adopted the principle of ] in the face of a ] provision codifying the traditional common-law doctrine of ].)

==== United States federal courts (1789 and 1938) ====
{{see|Federal common law}}
] and codification of federal statutes.]]

After '']'', 304 U.S. 64, 78 (1938) overruled ]'s decision in '']'', the ] was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law.<ref>''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.").</ref>
Later courts have limited ''Erie'' slightly, to create a few situations where ] are permitted to create ] rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government.{{efn|''See, e.g.'', '']'', {{ussc|318|363|1943}} (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case ]s backed by the federal government); '']'', 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding)}} Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.<ref>'']'', 521 U.S. 507 (1997) (invalidating the ], in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); '']'', 451 U.S. 304 (1981)</ref>

In ''Swift'', the ] had held that federal courts hearing cases brought under their ] (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. ''Erie'' overruled ''Swift v. Tyson'', and instead held that federal courts exercising diversity jurisdiction had to use all of the same ] as the courts of the states in which they were located. As the ''Erie'' Court put it, there is no "general federal common law".

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.{{efn|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)}} Outside diversity jurisdiction and when there is no federal statute,{{efn|In the words of Justice ]: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."<ref>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</ref>}} post-Erie federal courts have continued to create causes of action.<ref>{{cite book |title=Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation |date=2021 |publisher=Oxford University Press|page=134}}</ref> Justice ] strongly objected to this practice in an influential dissent for the case '']''.<ref name=popkin>{{cite book |last1=Popkin |first1=William D. |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=254 |quote=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 ] 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.}}</ref>

==== 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 ] of 1946.

For example, the ] issues relatively few ], but instead promulgates most of its substantive rules through ].

=== India, Pakistan, and Bangladesh (19th century and 1948){{anchor|CL India and Pakistan}} ===
The law of India, Pakistan, and Bangladesh are largely based on ] common law because of the long period of ] during the period of the ].

] represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The '']'', dating from 400 BCE and the '']'', from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.<ref>{{Harvnb|Glenn|2000|p=255}}</ref> ]'s central philosophy was tolerance and ], and was cited across ].<ref>{{Harvnb|Glenn|2000|p=276}}</ref> Early in this period, which finally culminated in the creation of the ], 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.<ref>{{cite journal |last=Alexander |first=C.H. | date=July 1952 |title=International Law in India |journal=The International and Comparative Law Quarterly |volume=1 |issue=3 |pages=289–300 |doi=10.1093/iclqaj/1.Pt3.289 |issn=0020-5893}}</ref> 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.<ref>Viswanatha, S.T., ''International Law in Ancient India'', 1925</ref>

When India became part of the ], there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.<ref>{{Harvnb|Glenn|2000|p=273}}</ref> After the failed ] against the British in 1857, the ] took over control of India from the ], and ] came under the direct rule of ]. The British Parliament passed the ] to this effect, which set up the structure of British government in India.<ref name="WDL">{{cite web |url = http://www.wdl.org/en/item/393/ |title = Official, India |work = ] |date = 1890–1923 |access-date = 30 May 2013 }}</ref> It established in Britain the office of the ] through whom the Parliament would exercise its rule, along with a ] to aid him. It also established the office of the ] along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.<ref>{{Harvnb|Jain|2006|p=2}}</ref>{{verify-inline|date=August 2015}}

==== Post-partition India (1948){{anchor|CL India}} ====

] is the longest written constitution for a country, containing 395 articles, 12 schedules, numerous amendments and 117,369 words.]]

Post-partition, ] retained its common law system.<ref>{{cite speech|author=]|title=An Overview of the Indian Justice Delivery Mechanism|url=http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf|event=International Conference of the Presidents of the Supreme Courts of the World|location=Abu Dhabi|access-date=1 August 2012|date=23–24 March 2008|quote=India, being a common law country, derives most of its modern judicial framework from the British legal system.|url-status=dead|archive-url=https://web.archive.org/web/20121102153013/http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf|archive-date=2 November 2012}}</ref> Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the ], laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the ] guidelines on ] and ]. Certain ]s, such as those on ], are also enforced in India.

==== Post-partition Pakistan (1948){{anchor|CL Pakistan}} ====

Post-partition, ] retained its common law system.<ref>{{cite web | url=http://www.supremecourt.gov.pk/web/user_files/File/REVIEW_P_46&47_2011_full.pdf | title=Federation of Pakistan v. Bhatti, "''in a common law jurisdiction such as ours''" | access-date=22 February 2012 | archive-url=https://web.archive.org/web/20141006110307/http://www.supremecourt.gov.pk/web/user_files/File/REVIEW_P_46%2647_2011_full.pdf | archive-date=6 October 2014 | url-status=dead }}</ref>

==== Post-partition Bangladesh (1968){{anchor|CL Bangladesh}} ====

Post-partition, Bangladesh retained its common law system.

=== Canada (1867){{anchor|CL Canada}} ===

] has separate federal and provincial legal systems.<ref>, s. 91(10), (18)</ref>

==== Canadian provincial legal systems{{anchor|CL Canada provinces}} ====

Each ] 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 ] use a common law system for civil matters (the exception being ], which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).

==== Canadian federal legal system{{anchor|CL Canada federal}}====

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 ] is the appellate court for federal courts and hears cases in multiple cities; unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits.<ref>{{cite web |url=http://www.fca-caf.gc.ca/index_e.shtml |title=Federal Court of Appeal – Home |publisher=Fca-caf.gc.ca |access-date=17 August 2013 |archive-url=https://web.archive.org/web/20080504132728/http://www.fca-caf.gc.ca/index_e.shtml |archive-date=4 May 2008 |url-status=dead }}</ref>

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.<ref>{{cite web|url=http://canada.justice.gc.ca/eng/csj-sjc/harmonization/bijurilex/aboutb-aproposb.html|title=Department of Justice – About Bijuralism|first=Government of Canada, Department of Justice, Legislative Services|last=Branch|website=canada.justice.gc.ca|date=14 November 2008}}</ref>

==== 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 ===
]'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 ] from the mid-17th century until about 1894, the ] period from about 1855 through 1857, US interventions/occupations during the period from 1909 to 1933, the influence of US institutions during the ] administrations (1933 through 1979) and the considerable importation between 1979 and the present of US culture and institutions.<ref>{{Cite journal |last=Serrano Caldera |first=Alejandro |date=1990 |title=The Rule of Law in the Nicaraguan Revolution |url=https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1259&context=ilr |journal=Loyola of Los Angeles International and Comparative Law Review and Compara |volume=12 |issue=2 |pages=341}}</ref><ref>{{Cite web |title=UPDATE: Guide to Legal Research in Nicaragua - GlobaLex |url=https://www.nyulawglobal.org/globalex/Nicaragua1.html |access-date=2022-05-08 |website=www.nyulawglobal.org}}</ref>

=== Israel (1948){{anchor|CL Israel}} ===
] has no formal written ]. Its ] are inherited from the law of the ] and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the ]<ref>{{cite web | url=http://www.lawofisrael.com/israeli-supreme-court-decisions | title=Supreme court decisions database | access-date=20 April 2014 | archive-url=https://web.archive.org/web/20140409015328/http://www.lawofisrael.com/israeli-supreme-court-decisions/ | archive-date=9 April 2014 | url-status=dead }}</ref> in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. However, because Israel has no written constitution, basic laws can be changed by a vote of 61 out of 120 votes in the parliament.<ref>New York Times, ''A rush to change'' (Jan. 15, 2023); ConstitutionNet, (Aug. 16, 2021).</ref> One of the primary reasons that the ] remains ] is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the ] (which, following the doctrine of ], holds near-unlimited power).

=== Roman Dutch common law{{anchor|CL Roman Dutch}} ===
{{unreferenced section|date=July 2024}}
] is a bijuridical or mixed system of law similar to the common law system in ] and ]. Roman Dutch common law jurisdictions include ], ], ], ], ], ] and ]. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of ] by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French ''code civil'' in 1809, however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 17th century such as ] and ]. In practice, the majority of decisions rely on recent precedent.

=== Ghana ===
Ghana follows the English common law<ref>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.</ref> 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.<ref>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</ref> The Bond of 1844<ref>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.</ref> marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British<ref>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.</ref> 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.<ref>Asante "Over a hundred years of a national legal system in Ghana: a review and critique" 1988 ''Journal of African Law'' 31 70.</ref> Section 14<ref>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".</ref> 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.<ref>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.</ref> 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 ==
] as illustrated in his '']'']]
], a 17th-century Lord Chief Justice of the English Court of Common Pleas and a ] (MP), wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his '']'' 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 '']'', written by Sir ] 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 ] that covers both common and statutory English law.

While he was still on the ], and before being named to the ], Justice ] published a short volume called '']'', which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law ''is''; rather, Holmes describes the common law ''process''. Law professor ]'s ''The Nature and Sources of the Law'', an examination and survey of the common law, is also still commonly read in ].

In the United States, ] of various subject matter areas (Contracts, Torts, Judgments, and so on.), edited by the ], collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly persuasive authority, just below binding precedential decisions. The ] is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

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 ==

* ]
* ]
* ]
* ]
* ], or Code of ]
* ]
* ]
* ]
* ]
* ]
* ]

== References ==
{{Reflist|30em}}

== Notelist ==
{{notes}}

== Further reading ==
*{{cite book | title = The Cambridge Companion to Medieval English Law and Literature | first1 = Candace | last1 = Barrington | first2 = Sebastian | last2 = Sobecki | year = 2019 | location = Cambridge | publisher = Cambridge University Press | isbn = 9781316632345 | doi= 10.1017/9781316848296| s2cid = 242539685 }} Chapters 1–6.
* {{cite book | title = Principles and Possibilities in Common Law | last = Bayern | first = Shawn | date = 2023 | location = Eagan, MN | publisher = West Academic Publishing | isbn=9781685612429 | url = https://books.google.com/books?id=2Am5zwEACAAJ}}
* {{cite book | title = Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America | last = Crane | first = Elaine Forman | date = 2011 | location = Ithaca, NY | publisher = Cornell University Press | isbn = 9780801477416 }}
* {{cite book | title = The Nature of the Common Law | last = Eisenberg | first = Melvin Aron | year = 1991 | publisher = Harvard University Press | location = Boston, MA | isbn=978-0674604810 | url = https://www.hup.harvard.edu/catalog.php?isbn=9780674604810}}
* {{cite book | title = A History of American Law | last = Friedman | first = Lawrence Meir | year = 2005 | publisher = Simon and Schuster | location = New York | edition = 3rd | isbn = 978-0-7432-8258-1 | url = https://books.google.com/books?id=JndnEiydTiYC&pg=PR19 }}
* {{cite book | title = A Dictionary of Modern Legal Usage | last = Garner | first= Bryan A. | year = 2001 | publisher = ] | location = New York | edition = 2nd, revised | isbn = 978-0-19-514236-5 | url = https://archive.org/details/dictionaryofmode00garn_0 | url-access = registration | page = }}
* {{cite book | title = Legal Traditions of the World | url = https://archive.org/details/legaltraditionso0000glen | url-access = registration | last = Glenn | first = H. Patrick | year = 2000 | isbn = 978-0-19-876575-2 | publisher = Oxford University Press }}
* {{cite book | title = Common Law and Ius Commune | last = Ibbetson | first = David John | author-link = David John Ibbetson | year = 2001 | publisher = ] | isbn = 978-0-85423-165-2 }}
* {{cite book |url=https://archive.org/details/historyofcommonl0000lang/ |title=History of the Common Law: The Development of Anglo-American Legal Institutions |first1=John H. |last1=Langbein |authorlink1= |first2=Renée Lettow |last2=Lerner |first3=Bruce P. |last3=Smith |year= |edition=1st |location=New York |publication-date=2009-08-14 |publisher=Aspen Publishers |isbn=9780735562905}}
* {{cite book | title = Outlines of Indian Legal and Constitutional History|first=M.P.|last=Jain|year=2006 |edition=6th|publisher=Wadhwa & Co | place = Nagpur | isbn = 978-81-8038-264-2 }}
* ], ''A Natural History of the Common Law''. Columbia University Press (2003) {{ISBN|0231129947}}
* Milsom, S.F.C., ''Historical Foundations of the Common Law'' (2nd ed.). Lexis Law Publishing (Va), (1981) {{ISBN|0406625034}}
* {{cite book | title = Fundamentals of American Law | last = Morrison | first = Alan B. | year = 1996 | publisher = Oxford University Press | location = New York | isbn = 978-0-19-876405-2 | url = https://books.google.com/books?id=Si0lupMPrEoC&pg=PA23 }}
* {{cite book | title = No Part of the Mother Country, but Distinct Dominions – Law, State Formation and Governance in England, Massachusetts and South Carolina, 1630–1769 | last = Nagl | first = Dominik | year = 2013 | publisher = LIT | location = Berlin | isbn = 978-3-643-11817-2 | url = http://de.scribd.com/doc/204061491/Dominik-Nagl-No-Part-of-the-Mother-Country-but-Distinct-Dominions-Rechtstransfer-Staatsbildung-und-Governance-in-England-Massachusetts-und-South-C | access-date = 30 September 2015 | archive-url = https://web.archive.org/web/20160812090708/http://de.scribd.com/doc/204061491/Dominik-Nagl-No-Part-of-the-Mother-Country-but-Distinct-Dominions-Rechtstransfer-Staatsbildung-und-Governance-in-England-Massachusetts-und-South-C | archive-date = 12 August 2016 | url-status = dead }}
* {{cite book | title = Law, Liberty and the Constitution: a Brief History of the Common Law | last = Potter | first = Harry | year = 2015 | publisher = ] | location = ] | isbn = 978-1-78327-011-8 }}
* {{cite book | title = Jurisprudence: The Theory of the Law | last = Salmond | first = John William | year = 1907 | author-link = John William Salmond | publisher = Stevens and Haynes | location = London | edition = 2nd | oclc = 1384458 | url = https://archive.org/details/jurisprudenceor01salmgoog | page = }}

== External links ==
{{Wikiquote}}
{{EB9 Poster|Common Law}}
* , ]
*
* Select
*
* {{Gutenberg|no=2449|name=The Common Law by Oliver Wendell Holmes Jr.}}; also available at
* ]
* {{Webarchive|url=https://web.archive.org/web/20110128190050/http://ausicl.com/ |date=28 January 2011 }}
* {{Webarchive|url=https://web.archive.org/web/20180809173356/http://iilss.org/ |date=9 August 2018 }}
*
* – University of Hong Kong Libraries, Digital Initiatives
* from Bouvier's 1856 Law Dictionary

{{law}}

{{Authority control}}

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Latest revision as of 15:57, 6 December 2024

Law created by judicial precedent

Not to be confused with Jus commune.
Legal systems of the world, with common law systems in several shades of pink

Common law (also known as judicial precedent, judge-made law, or case 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 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 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. 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

According to Black's Law Dictionary, common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions." Legal systems that rely on common law as precedent are known as "common law jurisdictions."

Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. Well into the 19th century, common law was still defined as "unwritten law" (lex non scripta) in legal dictionaries including Bouvier's Law Dictionary and Black's Law Dictionary. According to William Blackstone's declaratory theory the common law reaffirmed pre-existing customs but did not make new law. The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.

Many notable writers, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer, eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent.

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. 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. 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 jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity.

Common law evolves to meet changing social needs and improved understanding

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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". 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 "ts method is inductive, and it draws its generalizations from particulars".

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. In contrast to common law incrementalism, the legislative process is very 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 the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.

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, 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, 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. 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 (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 MacPherson v. Buick Motor Co., in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

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 Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.

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. (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

In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and law reports.

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. 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 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 law and the law of torts.

"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.

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. Oliver Wendell Holmes once dissented: "judges do and must legislate".

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.

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. As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 (1993):

Just as longstanding is the principle that "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, 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.

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. In these courts, the older decision remains controlling when an issue comes up the third time.

Other courts, for example, the Court of Appeals for the Federal Circuit (formerly known as Court of Customs and Patent Appeals) and the US 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.

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

Further information: Intracorporate Conspiracy Doctrine

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." This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply.

In contrast, in jurisdictions with very weak respect for precedent, 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. 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 for the frequent choice of the law of the State of New York in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States. Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law, and American contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues. On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law. Outside the United States, parties that are in different jurisdictions from each other often choose the law of England and Wales, particularly when the parties are each in former British colonies and members of the Commonwealth. The common theme in all cases is that commercial parties seek predictability and simplicity in their contractual relations, and frequently choose the law of a common law jurisdiction with a well-developed body of common law to achieve that result.

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.

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

See also: English law

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 Norman Conquest in 1066. Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds. A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed. The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs – all of which were incorporated into the Norman common law – is still a subject of much discussion. Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law.

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).

The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom and precedent.

The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Medieval English common law

A view of Westminster Hall in the Palace of Westminster, London, early 19th century

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system—citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.

At the time, royal government centered on the Curia Regis (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of Parliament, the Star Chamber, and Privy Council. Henry II developed the practice of sending judges (numbering around 20 to 30 in the 1180s) from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. The king's itinerant justices would generally receive a writ or commission under the great seal. They would then resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law".

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. 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. There were complaints of the eyre of 1198 reducing the kingdom to poverty and Cornishmen fleeing to escape the eyre of 1233.

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 Parliament acquired legislative powers to create statutory law. In England, judges have devised a number of rules as to how to deal with precedent decisions. The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books, of which the first extant was published in 1268, the same year that Bracton died. The Year Books are known as the law reports of medieval England, and are a principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when the common law developed into recognizable form.

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 Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent. However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law. One of the first and throughout its history one of the most significant treatises of the common law, Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's Institutes. The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's Commentaries on the Laws of England, and Roman law ideas regained importance with the revival of academic law schools in the 19th century. As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.

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. 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.

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."

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.'"

Blackstone

According to William Blackstone the unwritten law derived its authority from immemorial usage and 'universal reception throughout the kingdom' 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.

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.

Propagation of the common law to the colonies and Commonwealth by reception statutes

A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.

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 United States 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. 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. 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 on the high monarchical system become the Common Law of this Commonwealth... may hereafter have a very unsocial purpose."

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", 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 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, Louis Brandeis, later appointed to the United States Supreme Court, became noted for his use of policy-driving facts and economics in his briefs, and extensive appendices presenting facts that lead a judge to the advocate's conclusion. By this time, briefs relied more on facts than on Latin maxims.

Reliance on old maxims is now deprecated. Common law decisions today reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like. 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.

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, 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.

In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action". Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law (as opposed to equity)" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.

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. 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. A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong. 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.

Comparison with civil law

Civil law systems

Main article: Civil law (legal system)
A 16th century edition of Corpus Juris Civilis Romani (1583)

Common law is usually contrasted with the civil law system, which is used in Continental Europe, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and west Africa.

Common law systems trace their history to the English common law, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.

Role of precedent and judicial review

The primary contrast between the two systems is the role of written decisions and precedent as a source of law (one of the defining features of common law legal systems). While Common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges to pronounce general principles of law.

In some civil law jurisdictions the judiciary does not have the authority to invalidate legislative provisions. For example, after the fall of the Soviet Union the Armenian Parliament, with substantial support from USAID, adopted new legal codes. Some of the codes introduced problems which the judiciary was not empowered to adjudicate under the established principles of the common law of contracts - they could only apply the code as written.

There is no doctrine of stare decisis in the French civil law tradition. Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack authority to act if there is no statute. There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.

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.

Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. 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. 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. 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." 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 amicus briefs from non-parties. One of the most notable such cases was Erie Railroad v. Tompkins, a 1938 case in which neither party questioned the ruling from the 1842 case Swift v. Tyson that served as the foundation for their arguments, but which led the Supreme Court to overturn Swift during their deliberations. To avoid lack of notice, courts may invite briefing on an issue to ensure adequate notice. However, there are limits—an appeals court may not introduce a theory that contradicts the party's own contentions.

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.

Convergence of common law and civil law

The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to case law but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries.

Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law. In the United States, the Uniform Commercial Code (UCC) is an example of a codified framework governing various aspects of commercial law. Widely regarded as one of the most significant developments in American law, the UCC has been enacted, with some local variations, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

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.

Common law legal systems in the present day

In jurisdictions around the world

The common law constitutes the basis of the legal systems of:

and many other generally English-speaking countries or Commonwealth countries (except Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the bijuridicial law or civil code of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. Guyana and Saint Lucia have mixed common law and civil law systems.

The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.


Scotland

Scotland is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages), founded on the customary laws of the tribes residing there. Historically, Scottish common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same, but in many matters (particularly those of UK-wide interest), they are similar.

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).

The United States – states, federal courts, and executive branch agencies (17th century on)

New York (17th century)

The original colony of New Netherland was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. In 1664, the colony of New York had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the Netherlands were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers. When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The influence of Roman-Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

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 criminal law largely rests on English common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law is generally in line with that of other U.S. states, which in turn is generally based on the U.S. Federal Rules of Civil Procedure.

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.

California (1850s)

The U.S. state of California has a system based on common law, but it has codified the law in the manner of civil law jurisdictions. The reason for the enactment of the California Codes in the 19th century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

United States federal courts (1789 and 1938)

Further information: Federal common law
USCA: some annotated volumes of the official compilation and codification of federal statutes.

After Erie v. Tompkins, 304 U.S. 64, 78 (1938) overruled Joseph Storey's decision in Swift v. Tyson, the federal common law was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law. Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.

In Swift, the United States Supreme Court had held that federal courts hearing cases brought under their diversity jurisdiction (allowing them to hear cases between parties from different states) had to apply the statutory law of the states, but not the common law developed by state courts. Instead, the Supreme Court permitted the federal courts to make their own common law based on general principles of law. Erie overruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive law as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law".

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. Outside diversity jurisdiction and when there is no federal statute, post-Erie federal courts have continued to create causes of action. Justice Lewis Powell strongly objected to this practice in an influential dissent for the case Cannon v. University of Chicago.

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 Administrative Procedure Act of 1946.

For example, the National Labor Relations Board issues relatively few regulations, but instead promulgates most of its substantive rules through common law (connotation 1).

India, Pakistan, and Bangladesh (19th century and 1948)

The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj.

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. Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia. 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. 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.

When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India. It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.

Post-partition India (1948)

The Constitution of India is the longest written constitution for a country, containing 395 articles, 12 schedules, numerous amendments and 117,369 words.

Post-partition, India retained its common law system. Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the United Nations guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.

Post-partition Pakistan (1948)

Post-partition, Pakistan retained its common law system.

Post-partition Bangladesh (1968)

Post-partition, Bangladesh retained its common law system.

Canada (1867)

Canada has separate federal and provincial legal systems.

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 Canada use a common law system for civil matters (the exception being Quebec, which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).

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 Federal Court of Appeal is the appellate court for federal courts and hears cases in multiple cities; unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits.

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.

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.

Israel (1948)

Israel has no formal written constitution. Its basic principles are inherited from the law of the British Mandate of Palestine and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the supreme court in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. However, because Israel has no written constitution, basic laws can be changed by a vote of 61 out of 120 votes in the parliament. One of the primary reasons that the Israeli constitution remains unwritten is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the Knesset (which, following the doctrine of parliamentary sovereignty, holds near-unlimited power).

Roman Dutch common law

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Roman Dutch common law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana. Roman Dutch common law jurisdictions include South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka and Zimbabwe. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French code civil in 1809, however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 17th century such as Grotius and Voet. In practice, the majority of decisions rely on recent precedent.

Ghana

Ghana follows the English common law 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. The Bond of 1844 marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British 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. Section 14 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. 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

Sir William Blackstone as illustrated in his Commentaries on the Laws of England

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 Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law, which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process. Law professor John Chipman Gray's The Nature and Sources of the Law, an examination and survey of the common law, is also still commonly read in U.S. law schools.

In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, and so on.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

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

References

  1. 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
  2. Garner, Bryan A. (2001) . A Dictionary of Modern Legal Usage (2nd ed.). New York: Oxford University Press. p. 177. ISBN 9780195077698. common law. A. As Noun—in Broad Contrasts. 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 originally in England, common law is contrasted by comparative jurists to civil law, q.v. Second, 'with the development of equity and equitable rights and remedies, common law and equitable courts, procedure, rights, remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity' (OCL). Third, the term is similarly distinguished from ecclesiastical law. Fourth, it is occasionally used to denote the law common to the country as a whole-as distinguished from law that has only local applications. Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law <statutes in derogation of the common law are to be strictly construed>.
  3. "common law". LII / Legal Information Institute. Retrieved 27 November 2024. Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law.
  4. ^ "The Common Law and Civil Law Traditions" (PDF). Berkeley Law. 2016. Archived (PDF) from the original on 22 November 2024. Retrieved 24 November 2024. Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.
  5. ^ "stare decisis". LII / Legal Information Institute. Archived from the original on 24 November 2024. Retrieved 27 November 2024. Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means "to stand by things decided" in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority.
  6. "Marbury v. Madison, 5 U.S. 137 (1803)". Justia Law. Retrieved 27 November 2024. 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.
  7. "case of first impression". LII / Legal Information Institute. Retrieved 27 November 2024. A case of first impression is a case that presents a legal issue that has never been decided by the governing jurisdiction. ... A case of first impression lacks controlling precedent. In other words, a court deciding a case of first impression cannot rely on prior decisions nor is the court bound by stare decisis. To adopt the most persuasive rule of law, courts will look to various sources for guidance.
  8. ^ Langbein, Lerner & Smith (2009), p. 4.
  9. ^ "Common law | Definition, Origins, Development, & Examples | Britannica". www.britannica.com. 26 November 2024. Retrieved 28 November 2024.
  10. 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...
  11. ^ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 9780195077698. "common law" is contrasted by comparative jurists to civil law.
  12. Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law" Archived 25 May 2017 at 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."
  13. Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
  14. "Juriglobe". www.juriglobe.ca. Archived from the original on 2 November 2024. Retrieved 28 November 2024.
  15. ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
  16. 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
  17. ^ Carpenter, Charles E. (1917). "Court Decisions and the Common Law". Columbia Law Review. 17 (7): 593–607. JSTOR 1112172. (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.")
  18. Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007)
  19. 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)
  20. Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).
  21. Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
  22. The beneficial qualities of the common law's incrementalist evolution was most eloquently expressed by the future Lord Mansfield, then Solicitor General Murray, in the case of Omychund v. Barker, who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament". I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)
  23. "The Legislative Process". www.geron.org. Retrieved 12 June 2024.
  24. Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842)
  25. Thomas v. Winchester, 6 N.Y. 397 (N.Y. 1852)
  26. Statler v. Ray Mfg. Co., 195 N.Y. 478, 480 (N.Y. 1909)
  27. Cadillac Motor Car Co. v. Johnson, 221 F. 801 (2nd Cir. 1915)
  28. "Johnson v. Cadillac Motor Car Co". vLex. Retrieved 3 September 2024.
  29. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)
  30. ^ 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 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).
  31. ^ Social Law Library, Common Law or Civil Code?, Boston, Massachusetts.
  32. E. Allen Farnsworth, Farnsworth on Contracts, § 1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions the dominant primary source of contract law.")
  33. ^ 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.
  34. ^ Pound, Roscoe (1907). "Spurious Interpretation". Columbia Law Review. 7 (6): 381. doi:10.2307/1109940. 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.
  35. Pound, Roscoe (1941). "What of Stare Decisis?". Fordham Law Review. 10 (1).
  36. Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).
  37. Popkin, William (1999). Statutes in Court: The History and Theory of Statutory Interpretation. Duke University Press. p. 97.
  38. 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.")
  39. "Common Law – Atlas of Public Management". Retrieved 2 February 2024.
  40. 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 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).
  41. 83 Cr App R 191, 73 Cr App R 266
  42. ^ "LawGovPol, Common law: advantages and disadvantages".
  43. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
  44. 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).
  45. 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.
  46. ^ 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).
  47. Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract— 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.")
  48. Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
  49. 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.
  50. Documents from Medieval and Early Modern England from the National Archives in London. 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
  51. One history of the law before the Norman Conquest is Pollock and Maitland, The History of English Law before the Time of Edward I, .
  52. Jeffery, Clarence Ray (1957). "The Development of Crime in Early English Society". Journal of Criminal Law, Criminology, and Police Science. 47 (6): 647–666. doi:10.2307/1140057. JSTOR 1140057.
  53. Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law
  54. ^ Baker, John (21 March 2019). Introduction to English Legal History (5 ed.). Oxford University Press. doi:10.1093/oso/9780198812609.001.0001. ISBN 978-0-19-881260-9.
  55. Croniques de London (Camden Soc., 1844), pp. 28–9.
  56. Chronica Rogeri de Houedene (RS, 1871), IV, p. 62.
  57. Annales Monastici (RS, 1864–69), III, p. 135.
  58. T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260–261
  59. "BUSL, Legal History: The Year Books".
  60. Cambridge History of English and American Literature The Year Books and their Value
  61. E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
  62. E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
  63. 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).
  64. 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.
  65. 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).
  66. 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.
  67. Lehman, Jeffrey; Phelps, Shirelle (2005), West's encyclopedia of American law, Volume 3 (2nd ed.), Detroit: Thomson/Gale, p. 30, ISBN 9780787663704
  68. James R. Stoner, Jr., Common Law and the Law of Reason (Stoner is a professor of political science, not law)
  69. Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769)
  70. ^ Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p 15876
  71. 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.
  72. Gearey, Adam; Morrison, Wayne; Jago, Robert (2013). The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Taylor & Francis. p. 115.
  73. Postema, Gerald. Bentham and the Common Law Tradition. doi:10.1093/oso/9780198793052.003.0006.
  74. Edited Thinking like a lawyer: an introduction to legal reasoning (Westview Press, 1996), pg. 10
  75. Holmes, Oliver Wendell Jr. (1897). "The Path of the Law". Harvard Law Review. 10 (8): 457–478. doi:10.2307/1322028. JSTOR 1322028.
  76. The Common Law "O. W. Holmes, Jr., The Common Law". 1882.
  77. Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).
  78. 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.
  79. 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)
  80. Salmond 1907, p. 34
  81. Lobban, Michael "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II | year=2004 | work=Law and History Review, 2004 (University of Illinois Press) . ISSN 0738-2480.
  82. E.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("e 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)
  83. 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
  84. 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.
  85. 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".
  86. 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".
  87. Obeid, Nayla Comair; Brekoulakis, Stavros (20 February 2024). The Plurality and Synergies of Legal Traditions in International Arbitration: Looking Beyond the Common and Civil Law Divide. Kluwer Law International B.V. ISBN 978-94-035-2911-0.
  88. "Description and History of Common Law". Archived from the original on 28 February 2017. Retrieved 14 March 2017.
  89. "The Common Law and Civil Law Traditions". Archived from the original on 22 April 2016. Retrieved 11 June 2016.
  90. 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
  91. Garoupa, Nuno; Liguerre, Carlos Gomez (2011). "The Syndrome of the Efficiency of the Common Law". Boston University International Law Journal. 29: 298.
  92. "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
  93. Judicial Discretion in the Civil Law In the common talk among lawyers, it has even been said that in the Civil Law system legislators are almost like gods, and judges not even men."
  94. "In some cases, according to some expert observers, important principles were not included in the legislation because the drafters, not having any experience in commerce, could not appreciate the importance of the principles and the advisors could not convince them of the necessity of certain principles. For example, under legislation adopted, boards of directors can be held criminally and civilly liable if the corporation does not turn a profit, not exactly a great incentive to risk taking. It illustrates the difficulty of changing societal norms. At the same time, in deciding commercial cases, the judges are not to examine the prevailing practices regarding what agreements mean within the trade at the time the contract was entered into, a fundamental concept in western commerce and judicial practice." Rule of Law Assistance Impact Assessment: Armenia
  95. "The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems". Indiana Journal of Global Legal Studies. Retrieved 10 May 2024.
  96. The Common Law and Civil Law Traditions, Robbins Collection, University of California at Berkeley. Archived 22 April 2016 at the Wayback Machine
  97. "An Introduction to Law in French-Speaking Africa". The Journal of Modern African Studies. 9 (2). 1971. doi:10.1017/S0022278X00025064.
  98. ^ "Inquisitorial And Adversarial System Of Law". lawteacher.net.
  99. ^ 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.
  100. United States v. Sineneng-Smith, No. 19–67 (7 May 2020)
  101. Frost, Amanda (2009). "The Limits of Advocacy". Duke Law Journal. 59 (3): 447–518.
  102. the appendix to the Sineneng-Smith opinion gives an extensive catalog of cases in which the Court permissibly sought outside briefing.
  103. See Greenlaw v. United States and United States v. Sineneng-Smith
  104. ^ Funken, Katja (July 2003). "The Best of Both Worlds - The Trend Towards Convergence of the Civil Law and the Common Law System". SSRN. Retrieved 29 November 2024.
  105. "Uniform Commercial Code". www.uniformlaws.org. Retrieved 29 November 2024. The Uniform Commercial Code (UCC) is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law. Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called 'the backbone of American commerce.'
  106. "Uniform Commercial Code (UCC) | Duke University School of Law". law.duke.edu. Archived from the original on 26 July 2024. Retrieved 29 November 2024. The Uniform Commercial Code (UCC), a comprehensive code addressing most aspects of commercial law, is generally viewed as one of the most important developments in American law. The UCC text and draft revisions are written by experts in commercial law and submitted as drafts for approval to the National Conference of Commissioners on Uniform State Laws (referred to as the Uniform Law Commissioners), in collaboration with the American Law Institute. The Commissioners are all attorneys, qualified to practice law, including state and federal judges, legislators and law professors from throughout the United States and its territories. These quasi-public organizations meet and decide whether to endorse the drafts or to send them back to the experts for revision. The revision process may result in several different revisions of the original draft. Once a draft is endorsed, the Uniform Law Commissioners recommend that the states adopt these rules. The UCC is a model code, so it does not have legal effect in a jurisdiction unless UCC provisions are enacted by the individual state legislatures as statutes. Currently, the UCC (in whole or in part) has been enacted, with some local variation, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
  107. Stair Memorial Encyclopedia
  108. Court, The Supreme. "Role of The Supreme Court – The Supreme Court". www.supremecourt.uk.
  109. William Nelson, Legal Turmoil in a Factious Colony: New York, 1664–1776, 38 Hofstra L. Rev. 69 (2009).
  110. "Sara Jane Sandberg, Women and the Law of Property Under Louisiana Civil Law, 1782–1835 (2001)".
  111. 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.").
  112. 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)
  113. 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
  114. Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation. Oxford University Press. 2021. p. 134.
  115. Glenn 2000, p. 255
  116. Glenn 2000, p. 276
  117. Alexander, C.H. (July 1952). "International Law in India". The International and Comparative Law Quarterly. 1 (3): 289–300. doi:10.1093/iclqaj/1.Pt3.289. ISSN 0020-5893.
  118. Viswanatha, S.T., International Law in Ancient India, 1925
  119. Glenn 2000, p. 273
  120. "Official, India". World Digital Library. 1890–1923. Retrieved 30 May 2013.
  121. Jain 2006, p. 2
  122. 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.
  123. "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.
  124. Constitution Act, 1867, s. 91(10), (18)
  125. "Federal Court of Appeal – Home". Fca-caf.gc.ca. Archived from the original on 4 May 2008. Retrieved 17 August 2013.
  126. 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)
  127. 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.
  128. "UPDATE: Guide to Legal Research in Nicaragua - GlobaLex". www.nyulawglobal.org. Retrieved 8 May 2022.
  129. "Supreme court decisions database". Archived from the original on 9 April 2014. Retrieved 20 April 2014.
  130. 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).
  131. 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.
  132. 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
  133. 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.
  134. 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.
  135. Asante "Over a hundred years of a national legal system in Ghana: a review and critique" 1988 Journal of African Law 31 70.
  136. 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".
  137. 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

  1. 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)
  2. 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)
  3. 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)
  4. In the words of Justice Robert H. Jackson: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."

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