What is 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.

Connotations

Connotation 1

Common law as opposed to statutory law and regulatory law: The first connotation

concerns the authority that promulgated a particular proposition of law. For example,

in most areas of law in most jurisdictions in the United States, there are "statutes"

enacted by a legislature, "regulations" promulgated by executive branch agencies

pursuant to a delegation of rule-making authority from a legislature, and "common

law" decisions issued by courts (or quasi-judicial tribunals within agencies). This

first connotation can be further differentiated, into (a) laws that arise purely from

the common law without express statutory authority, for example, most of the criminal

law, contract law, and procedural law before the twentieth century, and (b) decisions

that discuss and decide the fine boundaries and distinctions in statutes and

regulations.

Connotation 2

Common law as opposed to civil law: The second connotation differentiates "common

law" jurisdictions (most of which descend from the English legal system) that place

great weight on such common law decisions, from "civil law" or "code" jurisdictions

(many of which descend from the Napoleonic code in which the weight accorded

judicial precedent is much less).

Connotation 3

Common law as opposed to equity: The third differentiates "common law" (or just

"law") from "equity." Before 1873, England had two parallel court systems, courts of

"law" that could only award money damages and recognized only the legal owner of

property, and courts of "equity" that recognized trusts of property and could issue

injunctions (orders to do or stop doing something).

History of common law

Common law originally developed under the inquisitorial system in England from

judicial decisions that were based in tradition, custom, and precedent. Such forms of

legal institutions and culture bear resemblance to those which existed historically in

continental Europe and other societies where precedent and custom have at times

played a substantial role in the legal process, including Germanic law recorded in

Roman historical chronicles. 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.

Common law legal systems

The common law constitutes the basis of the legal systems of: England, Wales,

Northern Ireland, the Republic of Ireland, federal law in the United States and the

states' laws (except Louisiana), federal law in Canada and the provinces' laws (except

Quebec civil law), Australia (both federal and individual states), New Zealand,

South Africa, India, Israel, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore,

Malta, Hong Kong, and many other generally English-speaking countries or

Commonwealth countries. Essentially, every country which had been colonized at some

time by Britain uses common law except those that had been colonized by other

nations, such as Quebec (which follows French law to some extent) and South Africa

(which follows Roman Dutch law), where the prior civil law system was retained to

respect the civil rights of the local colonists. India's system of common law is also a

mixture of English law and the local Hindu law.

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. Later 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.

Changing social needs and improved understanding

common and constitutional law ... arise gradually, in the emergence of a consensus

from a multitude of particularized p Justice Cardozo noted the

-established truths of universal and inflexible

validity to conclusions derived fr method is inductive, and

it draws its generalizations from p

Interaction of statute and common law

In common law legal systems (connotation 2), the common law (connotation 1) is

crucial to understanding almost all important areas of law. For example, in England

and Wales and in most states of the United States, the basic laws of contracts, torts

and property do not exist in statute, but only in common law (though there may be

isolated modifications enacted by statute). In almost all areas of the law (even those

where there is a statutory framework, such as contracts for the sale of goods, or the

criminal law, other written laws generally give only terse statements of general

principle, and the fine boundaries and definitions exist only in the common law

(connotation 1).

Common law as a foundation for commercial economies

This 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 common law to give 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. This ability to predict

gives more freedom to come close to the boundaries of the law.

Limitations of common law

The primary disadvantage of common law is that the laws aren't all stated clearly

and plainly in unambiguous and structured language, like statutes are in civil law

countries. This means that if you're seeking information on a common law cause of

action, or you're a party to a matter in which the common law is coming into play,

you almost absolutely need the advice and counsel of a licensed attorney, who knows

where to find the law, how to read the law, how to know what's good law (or what's

been overturned), and how to argue for whichever interpretation of the law you want

to apply in your case.

The second disadvantage of common law is that it is made by judges, whom many

people argue should have the sole purpose of enforcing the law, not creating it.