Common Law

Rules govern a wide spectrum of activities, behaviors, and relationships in society. They have developed over years, in some cases centuries, and many have their foundations in cultural customs. In addition to these rules, others are laid down by the state in a written or codified way. In this way, there are two main origins of law, common law and civil law. Most nations across the world follow one of these systems. The common law system originated in England, and due to historical influences, it forms the backbone of the American legal system, as well as many other countries around the world, including such diverse nations as Monserrat, India, Nepal, and Canada (with the exception of Quebec).

Brief History

Common law emerged in England in 1166 under the rule of King Henry II and was applied within British colonies across the continents. As such, the process of the American legal system is based on English common law. While England had considerable ties to mainland Europe during the Middle Ages, the legal system that developed in continental Europe was characterized by legislative decisions as the basis of civil law. This was applied in the colonies of European imperial power, such as Spain and Portugal, and later in the nineteenth and early twentieth centuries in processes of legislative reform in Russia and Japan. In contrast, the common law system that emerged in England originated from judicial decisions.

Prior to the twelfth century, no system of justice existed that applied across the whole of England. Over time, it became clear that a central system of governance and justice was needed and over which the monarch would have control. Such an association of law and national identity has been considered to be related to the development of the sovereign state, and in modern thinking, law and the state are often closely associated. It was William the Conqueror who first realized that in order for a monarch to exercise real power and control over his subjects, such a centralized system of governance and law was needed.

Henry II issued a Declaration at the Assize of Clarendon. This declaration established that judges should be sent out across the country on "circuits" to hear cases. When they did so, they were required to apply the law that had been made by judges at Westminster. As these national laws would apply to everyone, they would be "common to all." As a result, these laws became known as common law. In 1215, the Magna Carta, or Great Charter, declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land—thus establishing the right to a jury trial. In this way, common law in England coexisted with other systems of law, for example, church courts applied canon law; urban and rural courts applied local customary law; and chancery and maritime courts applied Roman law. It was only much later in the seventeenth century that the gradual domination of common law over the other laws took place. This occurred simultaneously with the United Kingdom’s Parliament establishing a permanent check on the power of the English king, and claiming the right to define the common law and declare other laws subsidiary to it.

Overview

Common law refers to laws made by judges hearing cases before them in court. Common law functions as an adversarial system in which there are two parties and a judge. The parties present their arguments, the facts of the case as they perceive them, and interpretations of relevant legislation. The judge moderates, in a similar way to a referee, and then, through interpretation and legal application of the facts of the case, the judge makes a determination referred to as a judicial decision.

Common law is largely uncodified, meaning there is no written compilation as there is with civil law, which is set out in legal rules and statutes. Instead, common law is made up of judicial decisions. Decisions made by judges can be binding on identical or similar cases coming forward to be heard in court in the future—this is known as judicial precedent and is based on the concept of stare decisis, meaning "to stand by things decided." Precedence is important because it provides a degree of certainty of outcome, fairness, and equity between cases where circumstances are the same or similar. However, this does not prevent common law from adapting to changing times. Courts can identify differences between situations and distinguish an earlier case from the one before them, thereby releasing them from the need to follow the precedent. As a result, judges have an enormous role in shaping laws in countries where common law forms part of the legal system.

The rulings of many important British cases have established long-lasting precedence and shaped the US legal system. For example, in the English contract law case Carlill v. Carbolic Smoke Ball Co. (1893), the company advertised they would pay £100 to anyone who used their product and still caught the flu. The ruling establishes that an advertisement can legally be a contractual offer. In Regina v. Dudley & Stephens (1885), a judge ruled that two shipwrecked sailors who killed and ate their weaker crew member were guilty of murder, establishing that necessity is not a legal defense to murder.

Common law has a complex and long history, yet it remains one of the most dominant legislative systems in the world. The American legal system remains firmly within the common-law tradition brought to the North American colonies from England. However, the southwestern states tend to reflect traces of civil law influence in their state constitutions and codes, derived from their early legal heritage as territories of colonial Spain and Mexico. While civil law can be seen to be, and may be emerging in traditionally common-law systems, this may be considered an erosion of common law. Alternatively and more constructively, it can be viewed as a complementary arm of the far-reaching, fluid, and challenging administration of justice.

Bibliography

Chen, James. "Common Law: What It Is, How It's Used, and How It Differs From Civil Law." Investopedia, 12 Feb. 2024, www.investopedia.com/terms/c/common-law.asp. Accessed 26 Dec. 2024.

"Common Law: Defining What It Is and What You Need to Know." Thomson Reuters, 15 Nov. 2022, legal.thomsonreuters.com/en/insights/articles/what-is-common-law. Accessed 26 Dec. 2024.

Epstein, Richard A. “The Common Law Foundations of the Takings Clause: The Disconnect between Public and Private Law.” Touro Law Review, vol. 30, no. 2, 2014. chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=7945&context=journal‗articles. Accessed 26 Dec. 2024.

Grossi, Simona. The U.S. Supreme Court and the Modern Common Law Approach. Cambridge UP, 2015.

Hudson, John. The Formation of English Common Law: Law and Society in England from the Norman Conquest to Magna Carta. 2nd ed., Routledge, 2018.

Kerr, Andrew Jensen. "Common Law Discourse: First Principles as Pragmatism." The Second Draft: Bulletin of the Legal Writing Institute, 2014.

"Key Features of Common Law or Civil Law Systems." The World Bank Group, 11 Oct. 2024, ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-systems/common-vs-civil-law. Accessed 26 Dec. 2024.

Kurtz, Sheldon F., and Cornelius J. Moynihan. Moynihan’s Introduction to the Law of Real Property: An Historical Background of the Common Law of Real Property and Its Modern Application. 8th ed., West Academic Publishing, 2022.

Larkin, Philip M. “The New Puritanism: The Resurgence of Contractarian Citizenship in Common Law Welfare States.” Journal of Law and Society, vol. 41, no. 2, 2014, pp. 227–56, doi:10.1111/j.1467-6478.2014.00665.x. Accessed 26 Dec. 2024.

Milsom, Stroud Francis Charles. Historical Foundations of the Common Law. Butterworth-Heinemann, 2014.

Rivlin, Geoffrey. Understanding the Law. 3rd ed., Oxford UP, 2004.

Slapper, Gary, and David Kelly. English Law. Routledge, 2006.