COMMON LAW

The common law was generally defined as the unwritten law, or lex non scripta, of England. It derived its authority from immemorial usage and "universal reception throughout the kingdom," as phrased by Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769). The common law was contrasted with written statutory laws enacted by Parliament. For some, like Sir John Davies (1569–1626), it was "nothing else but the Common Custome of the Realm" (preface to Reports, 1612). Indeed, the De Laudibus Legum Angliae (c. 1470; In Praise of the laws of England) of Sir John Fortescue (c. 1395–c. 1477) declared that "the realm has been continuously ruled by the same customs as it is now." Most, however, found it more accurate to describe the system as customary in origin. As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his Reports (1600–1615), it was "the grounds of our common laws" that were "beyond the memorie or register of any beginning." By the mid-seventeenth century, Sir Matthew Hale (1609–1676) made it clear that the "immemoriality" of the common law did not imply that it was unchanging, it only indicated that the precise origin of institutions (such as Parliament and the jury) and rules (notably of landed property) predating 1189 could not be traced. Their continued existence carried the presumption of both original and continued popular consent. As Hale wrote in his History of the Common Law (1713), the common law was "singularly accommodated" to the "Disposition of the English Nation" and "incorporated into their very Temperament," while also reflecting their experience.

As Coke pointed out in the first volume of his Institutes of the Laws of England (1628–1644), there were "divers lawes within the realme of England," including the prerogative law of the crown, the canon law practiced in the ecclesiastical courts, and the maritime law administered in the Admiralty. However, as John Selden (1584–1654) put it, "There are no laws in England but are made laws either by custom or act of parliament" (Commons Debates, 1628). These "particular laws" were included in the definition of lex non scripta, because their authority in England derived, according to Hale, from "their being admitted and received by us" either through statute or "by immemorial Usage and Custom in some particular Cases and Courts." They were subject to the control of the common law, which sought to keep their jurisdiction within its accepted boundaries or even, as in the early seventeenth century, to restrict them. Besides these particular laws, the lex non scripta also encompassed local and particular customs. Local customs, which originated in local practice in derogation from the general rules of common law, were recognized and enforced in the common law courts, but only if they were immemorial, continuous in usage, certain, and reasonable. Particular customs such as the custom of merchants (lex mercatoria) were also said to be part of the common law. In court, if any doubt arose about what the custom was, the evidence of merchants was received to inform the court.

In the first half of the seventeenth century common lawyers fearful of the ambitions of the Stuart monarchy challenged the idea that law derived from the commands of a king, whose authority came either from divine right or conquest. For them, the common law was a "fundamental law" derived from an ancient constitution, limiting the power of the crown and guaranteeing the freedoms and rights of the English, most particularly to their property. In the case of Prohibitions del Roy (1607) Coke declared that the law as administered by the judges was "the golden met-wand and measure to try the causes of [the] subjects," while in the Case of Proclamations (1610) it was ruled that the king's proclamations did not have the force of law. The legal debate over the existence of an "absolute" power in the king to act according to his idea of what the public good required in emergencies continued to be debated in a legally inconclusive way in a number of causes célèbres in the early seventeenth century. But the vision of the constitution espoused by common lawyers prevailed in the later seventeenth century and was secured by the Bill of Rights in 1689.

Such was Coke's veneration of the common law that he stated in 1610 that it could even declare void a statute "against common right and reason" (Dr. Bonham's Case). Before the outbreak of the English Civil War in 1642, lawyers sometimes described Parliament as a court, implying that statutes might be seen as judgments or declarations of the common law. More usually, however, lawyers from Coke to Blackstone described Parliament's power as "transcendent and absolute" (Coke, Institutes ) and not liable to judicial review. In doing so they did not expect (and did not see) an active, interventionist legislature. Legislation that was passed amended and modified the common law, rather than displacing it. Parliament was therefore seen as part of the common law's world rather than as a threat to it. Just as the common law grew from the consent of the people as manifested in custom, so statute was seen to come from current consent. It was a fundamental rule of the constitution, constantly reiterated, that the crown could neither change the law nor impose taxation without consent. It was this that made England (in Fortescue's terms) "a government not only regal but also political." As Hale put it, all legislation was a "tripartite indenture" between king, lords, and commons, rather than the mere will of the king or the people. The notion of the mixed constitution, founded on a presumed ancient original contract reconfirmed in 1689 and conferring unlimited power on the crown-in-Parliament, was generally accepted in mid-eighteenth-century England. However, when Parliament began in the 1760s to tax colonists who were not represented at Westminster, American lawyers invoked Coke's rhetoric from Bonham's case, arguing for the existence of a higher law to control the legislature. Where parliamentary sovereignty became the cornerstone of the British constitution, the American constitution of 1787 recast the old ideas of a fundamental law.

THE COMMON LAW IN THE COURTS

In a narrower sense, the common law was the body of law administered in Westminster Hall by the twelve judges of the three superior courts of law. These were the Common Pleas, whose position as the prime court for civil suits had been secured by the Magna Carta (1215) and which continued to attract most civil litigation until the early eighteenth century; the King's Bench, which originally dealt with crown business (including criminal matters) and had jurisdiction to correct errors from other courts of record; and the Exchequer of Pleas, which originally dealt primarily with revenue matters. By the later Middle Ages, thanks to procedural changes designed to attract litigants, these courts had a largelyconcurrent jurisdiction, and the King's Bench gradually became the most popular court. The common law administered in these three courts contrasted with "equity" as administered primarily in the Court of Chancery. The Chancery was originally a court of conscience, concerned with securing justice in individual cases rather than following strict rules. There were some complaints in the sixteenth and seventeenth centuries about the certainty of the common law being undermined by the interference of the lord chancellor. It was argued that one chancellor's conscience might differ from his successor's, just as the length of their feet did. In 1614–1616 an unsuccessful attempt was made by Coke to assert the supremacy of the common law courts over the Court of Chancery. However, after the Restoration, when Heneage Finch, earl of Nottingham, was lord chancellor (1675–1682), the court began to develop a more fixed set of principles and rules, which were further developed by Philip Yorke, earl of Hardwicke (lord chancellor, 1737–1756). By the eighteenth century, the old antagonism between the systems had gone. With a distinct procedure and set of remedies, the Chancery was able to develop a jurisdiction over matters to which the common law remained blind, most notably trusts. It thereby made up for the shortcomings of the common law, but its rules and doctrines presumed the existence of the common law, which it modified in particular contexts.

While common lawyers saw their law as based on immemorial custom, they also described it in terms of reason. As Coke put it in the Institutes, "reason is the life of the Law, nay the common law itself is nothing else but reason." By this he meant not the "natural reason" of every man but the "artificial reason" of lawyers, obtained by long study and experience. Knowledge of the law was a specialized enterprise, which had to be left to lawyers, and "if all the reason that is dispersed into so many several heads were united into one, yet he could not make such a law as the Law of England is." This law was seen to be both developing and unchanging. On the one hand, its core principles were seen as timeless. On the other, its details had been, as Coke stated elsewhere, "refined and perfected by all the wisest men in former succession of ages and proved and approved by continuall experience to be good & profitable for the common wealth."

Rather than directly reflecting the customary practices of the people, most of the law applied in the courts to the end of the eighteenth century had been created and developed in the judicial forum. The common law had originated in the reign of Henry II (ruled 1154–1189) not as a set of substantive rules, but as a set of institutions and procedures to enforce rights whose substance was defined by community custom. However, with the development both of a legal profession and of the jury in the thirteenth century, new legal norms emerged by which custom was rapidly turned into law, which then developed within the courtroom. Since the jury's function was to decide questions of fact, matters of the law had to be settled by lawyers and judges. In the later Middle Ages, when the process of pleading was flexible, judges avoided making clear determinations of substantive law, preferring to get the parties in uncertain cases to reformulate their claims to reflect the common understanding of what the law was. In this era, the law was often seen in terms of the "common erudition" of the lawyers, as debated at the Inns of Court as well as in the courtroom. By the sixteenth century, however, when pleading had become more formal, judges began to be more confident about making clear statements of law. Law was now often settled, after the determination of facts by the jury, by motions debated on the bench at Westminster Hall after a trial had taken place at the assizes.

In elaborating the law, judges assumed that the common law already contained within itself the answers to any questions they might be asked. They saw their function as being to declare what the law already was, rather than to make new law. In order to maintain certainty, they were expected as far as possible to follow the reasoning of earlier cases. Since cases were seen to be evidence of the law rather than law itself, no doctrine of binding precedent emerged in this period. Nevertheless, from the sixteenth century onward, law reports were produced that clearly set out the substantive decisions, in a way not done in the medieval Year Books, and lawyers such as Edmund Plowden (1518–1585) and Coke now published reports that sought to illustrate the principles of the law. Until the mid-eighteenth century most published law reports were the unreliable results of speculating publishers, but manuscript reports circulated widely and were often quoted in court. Principles, or maxims, could thus be obtained by a process of induction from the ratio decidendi, or reason for the decision, of earlier cases. Besides applying the principles and maxims thus obtained, judges were also expected to extend the reason of one case to another by a process of analogy. However, judges did not only derive their law from precedent or analogy, for in novel cases they were free to resort to arguments drawn from natural law, public policy, or convenience.

See also Absolutism ; Constitutionalism ; English Civil War and Interregnum ; Natural Law .

BIBLIOGRAPHY

Primary Sources

Blackstone, William. Commentaries on the Laws of England. 4 vols. Chicago, 1979. Originally published 1765–1759.

Coke, Edward. The First Part of the Institutes of the Laws of England, or, A Commentary upon Littleton. Edited by Francis Hargrave and Charles Butler. 15th ed. London, 1794.

——. The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of the Courts. London, 1644.

——. La huictme part des reports de sr. Edw. Coke. London, 1611.

——. Le quart part des reportes del Edward Coke. London, 1604.

Davies, John. Les reports des cases & matters en ley, resolves & adjudges en les courts del roy en Ireland. London, 1674.

Fortescue, John. De Laudibus Legum Angliae. Edited and translated by S. B. Chrimes. Holmes Beach, Fla., 1986.

Hale, Matthew. The History of the Common Law of England. Edited by Charles M. Gray. Chicago, 1971. First published 1713.

Johnson, Robert C., et al., eds. Commons Debates, 1628. 6 vols. New Haven, 1977–1983.

Secondary Sources

Baker, J. H. An Introduction to English Legal History. 4th ed. London, 2002.

Brooks, Christopher W. Lawyers, Litigation, and English Society since 1450. London and Rio Grande, Ohio, 1998.

Burgess, Glenn. The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1600–1642. Houndmills, U.K., 1992.

Lobban, Michael. The Common Law and English Jurisprudence, 1760–1850. Oxford and New York, 1991.

Oldham, James. The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century. 2 vols. Chapel Hill, N.C., 1992.

Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect. Cambridge, U.K., and New York, 1987.

Sommerville, J. P. Royalists and Patriots: Politics and Ideology in England, 1603–1640. London and New York, 1999.

Stoner, James R., Jr. Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism. Lawrence, Kans., 1992.

Tubbs, J. W. The Common Law Mind: Medieval and Early Modern Conceptions. Baltimore, 2000.

Michael Lobban

Common Law

Two systems of law have emerged throughout history: the common law of England and the civil law of the Roman Empire. Common law evolved from judicial decisions over time based on tradition, custom, and precedent in historical England. Civil law is derived from written legal codes in which disputes were settled by reference to edicts, broad principles, and legislation. Most of the nations of Europe, Latin America, and East Asia are governed by one of these two systems of justice. Although the two legal systems are different in many respects, they converged in the latter years of the twentieth century due to afailure of courts to keep pace with social developments and an increased reliance on statutory law in many societies.

history of common law

Common law originally developed as a result of the unification of England and the institutional stability provided by William the Conqueror (c. 1027–1087) after 1066. Prior to 1066, the Anglo-Saxon peoples were governed mainly by local customs and rules that varied from village to village and were often enforced arbitrarily by informal public assemblies. The clergy who controlled much of European society at the time preferred the civil-law tradition and endeavored to preserve it through the training of scholars and judges in Roman law principles.

The seeds of the common-law system were first planted by laymen and judges appointed by Edward I (1239–1307). Their mission was to promote the common law as an alternative to the law system controlled by the clergy. Laymen established societies called "inns of court," where they devoted their lives to the study of the common law. Judges were selected from these societies by the king to administer the law and make judgments based on precedents provided by past decisions. A unique aspect of common law was that it was based on the law of the courts as expressed by judges in the form of judicial decisions rather than on general principles or edicts enunciated by the Church. These judicial decisions, if issued by the highest court in the jurisdiction , were binding on all other courts in the jurisdiction. A weakness of early common law, however, was that the only remedy available was monetary damages.

During the twelfth century, Henry II (1133–1189) institutionalized the common law by creating a powerful unified court system based on it. The establishment of the new court system diminished the significance of the canonical courts and the Church's preference for the civil-law system, invoking anger and dissent within the Church. Thomas Becket (1118–1170), the archbishop of Canterbury, was an outspoken critic of the king's policies against the Church. In 1163, Becket sought the complete exemption of the Church from all civil jurisdiction, allowing undivided control of its clergy. The king, however, called a meeting of the clergy at Westminster and demanded that they renounce all claim to exemption from civil jurisdiction and acknowledge the equality of all subjects before the law. Becket was later assassinated by the king's followers.

In 1215 King John (1167–1216) elevated the importance of the common law at Runningmead when he signed the Magna Carta. The Magna Carta freed the Church, localized the court system, and codified the basic principles of the common law. A few decades later, Henry de Bracton (1210–1268), an English judge and writer on English law, wrote the famous treatise De legibus et consuetudinibus Angliae (On the laws and customs of England), in which he asserted the supremacy of the common law over the king. Sir Edward Coke (1552–1634), an English jurist , later became the great champion of the common law against encroachments by the king and declared null and void royal proclamations that were contrary to the law.

By the sixteenth century, common law had come to supplant civil law as the predominant legal system in England. Judges and lawyers repudiated the civil-law system as outdated and inapplicable to the English polity. Although the common law was still somewhat unwieldy in terms of procedural rules, it had opened the door substantively to a host of new rights and protections that were not applicable under the civil-law tradition. For example, litigants discovered that they could petition the king for further redress if monetary damages were not sufficient to right a wrong committed against them (i.e., eviction in the case of a squatter occupying one's land). It was out of this pursuit of additional remedies that courts of chancery and equity emerged.

Over the next few centuries, the common-law system continued to develop and expand geographically throughout the world. In 1774, when the representatives of the various American colonies met in Philadelphia, they declared the common law of England to be part of the basic rights and liberties to which the colonies were entitled. In 1848, the state of New York enacted a code of civil procedure that merged law and equity into one jurisdiction. Subsequently, the Field code reforms—named for the codes' drafter, David Dudley Field (1805–1894)—were adopted by the U.S. federal government, most of the states, and the United Kingdom. These codes placed the administration of law and equity suits in the same courts.

Today, every state in the United States, except Louisiana, uses the commonlaw system. Most state statutes require that the common law, equity, and statutes in effect in England in 1603 should be included in the law of the jurisdiction. The common-law system also constitutes the basis of the legal systems of Canada (except for Quebec), Australia, Hong Kong, India, Malaysia, New Zealand, and South Africa, among other nations. Each of these common-law jurisdictions recognizes the importance of the adversarial system and the fundamental principles of law that have been adopted over the centuries by way of custom and case law.

history of civil law

Civil law, in contrast to common law, developed out of Romano-Germanic law—the law of continental Europe—based on an admixture of Roman, Germanic, ecclesiastical, feudal, commercial, and customary law . The beginnings of the civil-law tradition can be traced to the Twelve Tables written in 449 b.c.e. The Twelve Tables laid the foundation for Roman law, which would develop over the centuries and become one of the most advanced systems of law in human history. It included a number of important legal concepts, including the notion of private international law, and the distinctions between contract and tort , and property and possession. In the sixth century the Emperor Justinian (c. 483–565) codified much of Roman law in the Corpus Juris Civilis. The Corpus Juris Civilis is regarded as one of the most influential legal texts ever written and has been on the reading lists of law schools in countries using civil law for nearly 1,500 years.

After the fall of the Roman Empire, the Church oversaw the development and preservation of the civil-law tradition through the Middle Ages. Roman law later was supplanted by Germanic laws, but it was revived during the eleventh century as part of a much broader renewal of interest in classical culture in Europe.

Following the rise of the nation-state system in Europe, natural or civil codes were established in several countries, including France, Spain, Germany, and several Latin American and East Asian countries. The purpose behind the civil codes was to create a unified system of laws or statutes derived from basic principles and on which judicial decisions could be based. Perhaps the most widely known civil code is the Napoleonic Code established in France in 1804, which also serves as the basis for the civil-law systems of Quebec and Louisiana today. The German civil code provides the legal foundation for the civil-law systems of the former Soviet-bloc countries, as well as Japan, South Korea, China, and Taiwan. Most of Latin America also uses the civil-law system, shaped by the civil codes of its former colonial masters in Europe.

fast facts

Louisiana is the only U.S. state that operates under the Napoleonic Code, or civilian law system.

field's code reforms

Frustrated by a cumbersome common-law system that forced attorneys to rely on an increasingly complex body of judicial opinions, New York jurist David Dudley Field (1805–1894) spent much of his professional career spearheading judicial reform. Beginning in 1839, Field began the laborious process of codifying the body of New York law into written form, merging law and equity proceedings into a single jurisdiction and dramatically increasing the accessibility of a systematized and consistent body of law for attorneys, magistrates, and clients.

While his efforts met with some initial resistance, Field's code reforms were eventually adopted by the federal government, many state governments, and even several foreign countries. After completing his work on the domestic codes, Field went on to draft an outline of an international code in 1872, which considered the peacetime relationships among nations. A second edition of his international code included a section on wars among nations.

common law versus civil law: defining characteristics

One of the key elements that distinguishes common law from civil law is the role of precedent. Precedent is the principle in law of looking to past judicial decisions to assist in the application of the law to a given set of facts. There are two types of precedent: (1) binding precedent and (2) persuasive precedent. Binding, or mandatory, precedent is rooted in the doctrine of stare decisis ("let that stand which has been stated"), which expresses the notion that prior court decisions must be followed as precedents according to case law. In a common-law system, lower courts must follow prior judicial decisions from a higher court in the same jurisdiction. A Supreme Court or high court, however, is not bound by lower-court precedents and may overrule or modify its own judicial decisions. The principle of stare decisis is not recognized in most civil-law jurisdictions, however, on the grounds that it interferes with the right and duty of judges to interpret and apply the law as it is written in the codes or statutes.

The second type of precedent is persuasive, or advisory, in nature and is based on the notion that lower courts should adhere to a higher court's decision unless there is a strong reason to ignore, overturn, or modify the decision. Unlike the role of precedent in the same jurisdiction under the common law, in which former decisions control the court unconditionally, the role of precedent in separate jurisdictions does not control the court's decision. Under the common-law systems of most U.S. states, courts often ignore their own decisions or the decisions of higher courts in separate jurisdictions because such decisions are only persuasive. This second type of precedent is more compatible with civil law. Nonetheless, courts are still expected to adhere to their own precedents in the absence of strong justification to ensure predictability in the law.

Purported Certainty. Another important characteristic of the common law is its purported certainty. There is no place—at least in theory—for a lawyer's opinion or the private interpretations of judges under the common law. Because the common law—again, in principle—controls the arbitrary discretion of judges, it is supposed to produce certainty with regard to one's rights and duties under the law. New rules may be adopted from time to time and judicial decisions may be overturned, but these new rules or decisions will become binding precedents, thus restoring certainty to the law. Thus, an individual coming before the court will be assured of the same decision in the same type of case. The principle of stare decisis in judicial decision-making has guided the development of the common law over the centuries in an effort to foster predictability of the law.

Civil law also claims to strictly regulate judicial discretion: It posits the ideal role of the judge to be that of "the mouth of the law," speaking only what is required by the statutes or law codes. Nevertheless, civil law depends on flexibility in interpreting the law to a much greater degree than does common law.

Different schools of judicial interpretation exist in most civil-law countries, and the law tends to be a product of these competing schools. Judicial disregard of precedent may be considered to be a strong point of the civil-law system, even if it makes the law less certain, because it allows for alternative interpretations of the law that may be more compatible with the facts and circumstances of a particular case. One of the results of this more flexible approach in applying the law is that judicial opinions tend to be more concise, as courts discuss only the relevant legislation that applies rather than detailing how a decision was reached. However, the civil-law systems of Europe, as one might expect, are still subject to the vagaries and uncertainties that come with judge-made law in which precedents have little influence.

Statutory Codification. A third distinguishing feature of common law is that it remains relevant alongside of statutory codification. Statutory codification is the process by which a statute is passed with the intention of restating the common-law position in a single document. However, statutes may leave out a number of things that are provided for in the common law. If a statute seeking to codify the common-law tort of negligence excludes the right to seek certain damages (i.e., loss of earnings and emotional distress) provided for under common-law negligence, a person may still pursue those excluded damages under common law. These damages need not be set forth in statute as long as they already exist under the common law. In most common-law jurisdictions, lawmakers understand that statutes are to be drafted in light of the common-law tradition, and so they may omit a number of things, knowing that preexisting case law or custom serves as backstop to statutory law.

the convergence of common law and civil law

The evolution of the common law has been a process of discovery as well as a stabilizing force for civilization. Early common law, unlike civil law, was inflexible, procedurally unwieldy, and provided for only monetary damages. Over time, however, common law has become more reliable and predictable than civil law, as adherence to the principle of stare decisis has yielded a consistent record of case law for judges and lawyers to follow. Until recently, the common-law and civil-law systems differed sharply due to the different emphasis each placed on basic notions such as judicial discretion and certainty in the law. However, given the rapid changes in culture, politics, media, and communications in the last century, the common-law courts have found it more difficult to keep pace with social developments.

Increasingly, the courts have turned to statutory law to fill gaps in the common law created by social developments. For example, there is no tort of wrongful death under the common law. Wrongful death, which permits a spouse or child to sue for damages on behalf of the deceased, is purely a statutory cause of action. Thus, in the absence of a wrongful death statute, a person cannot look to the common law for relief under this cause of action. Courts generally are supposed to interpret such statutes strictly according to their terms, and, in doing so, to regard the legislature's intent as controlling.

In sum, the convergence of common law and civil law has been an important development in legal history. Common-law judges have come to recognize the need for the expansion of statutory law in many fields, including commercial, administrative, and criminal law. The effect of this convergence has been to reduce the reliance on precedent and judicial supremacy in favor of more democratically driven law within the common-law system. Although common-law judges still look to precedents provided by past decisions to resolve the vast majority of disputes, legal scholars no longer see the common law and the civil law as mutually exclusive.

See also: Civil Law.

bibliography

Hogue, Arthur. Origins of the Common Law. Indianapolis, IN: Liberty Fund, 1986.

Holmes, Oliver Wendell, Jr. The Common Law, Lecture (1881). Mineola, NY: Dover Publications, 1991.

Merryman, John. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. Palo Alto, CA: Stanford University Press, 1994.

Plucknett, Theodore. Concise History of the Common Law. 5th ed. Aspen, CO: Aspen Publishers, 1956.

Klint Alexander

COMMON LAW

COMMON LAW. In 1765, in the first volume of his Commentaries on the Laws of England, William Blackstone explained that the law had two main parts: the statute law and the common law. The common law consisted of the general customs of the realm. It was often called an un-written law because the common-law principles could not be found in any one place, but rather in the decisions of judges in thousands of individual cases. Those customs, built up over the generations by judicial decisions and cataloged by scholars, represented (supposedly) the wisdom of the ages. Blackstone thought such a law was entitled to respect precisely because it represented practices stretching as far back as the human mind could recall. Such immemorial usage testified that the common law was correct. He was so proud of the common law that he called it "the perfection of reason."

Blackstone defined the common law in static terms, which made change difficult. Judges had to follow the precedent of the unwritten common law unless it was patently absurd or unjust—a high standard to meet. Thus many believe, with Francis Bacon, that judges are expounders and not makers of the common law. The common law in Blackstone's England was a body of principles arcane and difficult to understand, for sometimes the rationale underlying rules had been obscured by the mists of time. Nevertheless, it was also based on reason. That obscure but still rational law was difficult to challenge.

The Common Law after the Revolution

By the time of the American Revolution, however, an alternative understanding of the nature of the common law was emerging. Through the study of legal history, introduced by Matthew Hale's History of the Common Law (1713), both English and American lawyers began to understand that the common law evolved and that the law seemed to support a growing emphasis on liberty. An increasing historical consciousness led to views like that expressed by the scientist Joseph Priestley, who emigrated from England to America shortly after the Revolution: "Many things in the present state of the law are unintelligible without the knowledge of the history and progress of it." At the same time, the law became more complex to accommodate increases in commerce. So, faced with a rapidly expanding body of law and a sense that the law had changed in the past, American judges began to think of the common law as an evolving, rather than a static, body of principles. They spoke favorably of recrafting the common law to bring it into line with American values.

That recrafting took place along many fronts, including changing the rules for distribution of property at death. Where English rules gave preference to the eldest male child, Americans distributed property more equally to children (and grandchildren) at death. Across areas from property to contract to tort law, judges reexamined English precedent to see whether it fit American needs. Often those judges spoke about their desire to promote economic growth—for example, by limiting liability of corporations for harm they caused to neighbors—and at other times of the need to promote morality. The law was made more humane to provide at least minimal protection to families from creditors, to wives from abusive or prodigal husbands, and even (on rare occasions) to tenants from landlords. The decisions frequently were phrased in terms of expediency and, in rare instances, in terms of humanity. The Supreme Court Justice Joseph Story wrote in the 1830s about the common law as a mixture of ancient tradition and modern, commercial needs.

Even as conservative judges were acknowledging their ability to remake the law to bring it into line with American views of economy and society, they were careful to portray the common law as evolving slowly. They needed to guard against the image that the common law might effect rapid change, for they needed to preserve the law's majesty. Few maintained the fiction of Blackstone's era that the law had been the same from time immemorial, but many continued to believe that judges had little power in remaking the law. The dominant view of the early nineteenth century was that judges were expounders of the common law and only had the power to make incremental changes.

Questioning the Common Law

Many outside the legal system saw the issue differently, however. Those outsiders saw the common law not as the perfection of reason but as the perfection of nonsense. In speeches and newspapers, outsiders to the legal system—usually adherents of the Democratic Party—attacked the common law as the creation of judges, who were making law to protect property against democracy. These debates occurred at a time when judges were using common-law doctrines to outlaw union organizing, to require the return of fugitive slaves, and to protect merchants and creditors at the expense of consumers and debtors. The critics of the common law ridiculed it as an arbitrary collection of abstruse rules. William Sampson's attack was among the most vitriolic. He thought Americans "had still one pagan idol to which they daily offered up much smokey incense. They called it by the mystical and cabalistic name of Common Law." Some principles were ancient, others recent, but in all instances, the common law sat "cross-legged and motionless upon its antique altar, for no use or purpose but to be praised and worshiped by ignorant and superstitious votaries." Many Americans agreed with Ralph Waldo Emerson's call in his 1836 book Nature for "our own works and laws and worship."

Related to that attack on the common law was a movement to limit the power of judges. Around 1810 the United States Supreme Court prohibited the creation of "common law" crimes; after that, in order to be prosecuted for crime in federal court, the accused had to be charged with violating a law passed by Congress rather than a rule created by a judge. A related drive for codification of other laws would have similarly limited judges' power to make new rules in such areas as contract, torts, property, and court procedure. The codification movement had two parts. The more radical branch, advocated by people like Thomas Jefferson and Sampson, sought to limit judges' discretion; a less radical branch, advocated by moderates and conservatives like Timothy Walker and Hugh Legaré, sought merely to clarify the law that judges applied.

Following the Civil War, the common law was increasingly seen as the creation of its history, and the trend toward decisions that facilitated economic growth seems to have continued. Proponents of the law and economics movement argued toward the end of the twentieth century that judges after the Civil War produced a common law that promoted efficient use of resources; they claimed that judges have long been concerned with creating economically efficient common-law rules. Oliver Wendell Holmes's 1881 book The Common Law was an important part of the postwar recognition that law evolved and that it was the product of historical events, rather than simply the result of reason. Holmes's book, focusing on experience rather than logic, is often seen as the legal analog to Charles Darwin's Origin of Species, focusing on biological processes rather than divine ones.

Holmes helped popularize the understanding that law evolves, but it was left to the legal realists of the early twentieth century, who linked that insight with a systematic critique of the rules that judges announced, to show that judges' own attitudes were central to making the law. Justice Benjamin N. Cardozo's 1921 book The Nature of the Judicial Process acknowledged that judges ought to look to their surrounding society, as well as precedent, for guidance in deciding cases. He engaged in the heresy of treating the "judge as legislator." That view of the common law reached its height in what the U.S. district judge Joseph Hutcheson called the judicial "hunch"—the belief that judges decided cases based on instinct rather than on precedent. Similarly, Karl Llewellyn expressed "rule skepticism," which debunked the priority of rules in judges' decision making. He focused on the importance of the sentiments of judges, lawyers, and the community in deciding cases. The U.S. district judge Jerome Frank took that a step further with his skepticism toward both law and facts. Frank's Law and the Modern Mind (1930), which offered a psychoanalytic interpretation of judges, ridiculed Americans' attachment to what he viewed as the myth that law could be certain. He argued that judges decided cases according to their own personal prejudices and foibles.

Interpretations since World War II

After World War II there was a growing interest in the use of the common law as a tool for social reform. While some academics spoke of the legal process school—the belief that there were methods of common-law and statutory interpretation that were independent of politics—other academics and jurists on both ends of the political spectrum urged judges to use their common-law power to remake the law. Where once judges had wielded the law to limit corporate liability, some began to expand tort law to make it easier for injured parties to recover in areas from hazardous working conditions to dangerous drugs to professional malpractice. Related developments in contract law relieved consumers with little bargaining power from unfair bargains, and changes in landlord-tenant law gave tenants more power. Meanwhile, judges from the right of the political spectrum, particularly after 1980, became increasingly concerned with considerations of economic efficiency. In areas from antitrust to environmental regulation and contracts, judges drew insights from economics to reshape the common law, such as the idea that sometimes monopolies are beneficial to consumers because they reduce costs.

In modern America, the common law continued to be the product of generations of judicial decision, but at the beginning of the twenty-first century it was under-stood to be the product of judge-made innovations. However, a more static conception of the common law has been reemerging in the United States Supreme Court. In several late-twentieth-century lines of cases, the Supreme Court limited the power of the courts to reinterpret the law. In 1993 in Lucas v. South Carolina Coastal Commission, the Court concluded that the state of South Carolina must recognize the traditional property rights of an owner of coastal property, primarily the right to build along the coast. A South Carolina court could not depart from the long-established precedent that property owners had a right to build along the shore. Then, in 1997 in City of Boerne v. Flores, the Supreme Court rejected the argument that Congress had the power to make its own findings about what constituted violations of constitutional rights. It there by protected the right of courts to be the arbiter of what constituted violations of constitutional rights. Together those lines of decisions suggest that the Supreme Court was protecting courts' power under the common law while limiting the ability of judges to alter that law.

Yet every day, as has happened for centuries, judges grapple with new facts and struggle to apply precedent. These judges are using the common-law system, which affords them the power to apply old precedent to new cases and to remake old precedent when necessary.

BIBLIOGRAPHY

Brophy, Alfred L. "Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists." Boston University Law Review 79 (December 1999):1161–1213.

Holmes, Oliver Wendell. "The Path of the Law." Harvard Law Review 10 (1897):457–478.

Horwitz, Morton J. The Transformation of American Law, 1780– 1860. New York: Oxford University Press, 1992.

Hutcheson, Joseph C. "The Judgment Intuitive: The Function of the 'Hunch' in Judicial Decision." Cornell Law Quarterly 14 (1929):274–288.

Karsten, Peter. Heart versus Head: Judge-Made Law in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1997.

LaPiana, William P. Logic and Experience: The Origin of Modern American Legal Education. New York: Oxford University Press, 1994.

Llewellyn, Karl. "A Realistic Jurisprudence—The Next Step." Columbia Law Review 30 (1930):431–465.

Posner, Richard. "A Theory of Negligence." Journal of Legal Studies 1 (1972):29–96.

Sampson, William. Sampson's Discourse, and Correspondence withVarious Learned Jurists, upon the History of the Law. Washington, D.C.: Gales and Seaton, 1826.

Story, Joseph. "Common Law." In Encyclopaedia Americana. Edited by Francis Lieber. Volume 3. Philadelphia: Carey, Lea and Carey, 1829.

Walker, James M. The Theory of the Common Law. Boston: Little, Brown, 1852.

Alfred L.Brophy

See alsoBoerne v. Flores .

COMMON LAW

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution.

The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals.

A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action.

The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French civil law combined with English criminal law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails.

Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the common pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.

Early common-law procedure was governed by a complex system of pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as code pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court.

Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of stare decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment.

Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.

Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.

further readings

Cantor, Norman F. 1997. Imagining the Law: Common Law and the Foundations of the American Legal System. New York: HarperCollins.

Kellogg, Frederic R. 2003. "Holmes, Common Law Theory, and Judicial Restraint." John Marshall Law Review 36 (winter): 457–505.

Pound, Roscoe. 1999. The Spirit of the Common Law. New Brunswick, N.J.: Transaction.

Strauss, David A. 2003. "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal 112 (May): 1717–55.

cross-references

Adversary System; English Law.

common law. The origins of the common law lay in the justice of the king, exercised through his curia regis, rather than the customary law exercised in the old communal courts of shire and hundred, or the feudal law exercised by the lord in relation to his own vassals, free and unfree. In the reign of Henry I the justice of the king in his curia was sometimes invoked in favour of a subject, though justice was usually to be sought in the communal or feudal courts.

As overlord of all subjects, the king had a residual right to give justice to all, and as feudal lord of the tenants-in-chief he had the right and the duty to sit in his curia regis to hear their disputes, or to deal with matters relating to their feudal duties. Until the reign of Henry II, royal justice was available to subjects who were not tenants-in-chief only in exceptional cases, since the proper court for matters relating to land or tenure was the court of one's lord and other matters were the province of the court of shire or hundred. However, in the reign of Henry II, access to the king's justice was extended by the enactment of a principle that ‘no man need answer for his freehold land without the king's writ being obtained’. As a result, the writ of right patent would issue to the lord ordering him to hear the case between his free tenants; where there was a dispute between tenants-in-chief, the alternative ‘praecipe’ form of the writ of right would be issued, ordering the defendant to return the disputed land or to appear before the king's justices to explain his refusal. Further, through the development of the Grand assize and the petty assizes, disputants over land would have their case tried by an inquest of neighbours who gave a verdict on oath before the royal justices. As these royal writs and particularly the petty assizes became popular with litigants, so they increasingly sought the justice of the king's courts rather than the local or feudal courts, which slowly declined. This decline was caused by a number of factors, legal, social, and economic, but the influence of royal justice and the effectiveness of its procedures (e.g. petty assizes, trial by jury) led inexorably to the decline of rival systems of justice and the triumph of the king's justice or, as it came to be known, the common law.

The king's justice was dispensed by the itinerant justices of the curia regis and gradually the principles and procedures of the king's law grew from their practice, drawing on the customs of different areas of the country. When the courts of Common Pleas, King's Bench, and Exchequer developed as separate entities, the law they applied was the common law. By the time of Edward I there was in existence a ‘common law’—the law administered in the king's courts throughout the land and therefore ‘common’ to the whole kingdom.

The term ‘common law’ came to be used of the English legal system and, generally, to describe a system where the law is built up through the decisions of the courts. Hence it is used to describe the legal systems of former colonies such as the majority of the USA and the member countries of the Commonwealth, which share the common law tradition. The term is also used to describe those rules and principles of law which are based upon the decisions of the courts as distinct from the rules and remedies which were applied in the Court of Chancery. Finally the term is used to describe rules of law which have been established by the courts as against laws which are formally enacted by Parliament (statute law). See also civil law.

Maureen Mulholland