Chapter Six
Common law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Once an appellate court has decided what the law is, that precedent tends to bind future decisions of the same appellate court, and binds all lower courts reviewed by that appellate court, when the facts of the case are similar, until there is another authoritative statement of the law (e.g. by a legislature or higher court). The common law forms a major part of the legal systems of those countries of the world with a history as territories or colonies of the British Empire. It is notable for its inclusion of extensive non-statutory law reflecting precedent (stare decisis) derived from centuries of judgments by working jurists[1].
Common law legal systems
The common law constitutes the basis of the legal systems of: England and 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, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Malta and Scotland and the Canadian province of Quebec)). Essentially, every country which has been colonized at some time by England, Great Britain, or the United Kingdom uses common law except those that had been formerly colonized by other nations, such as Quebec (which follows French law to some extent), 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. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s).
Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth 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.
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws 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 original colony of New Netherlands 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. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English 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-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth 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.
United States federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. Up until 1938, the federal courts followed the doctrine set forth in the 1842 case of Swift v. Tyson. In that case, 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. In 1938, the Supreme Court decided Erie Railroad v. Tompkins. Erie over-ruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law", the key word here being general. Erie did not put an end to other types of federal common law in certain areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests. Congress is free to modify the federal common law[2].
Works on the common law
The 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.
In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), 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[3].
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.
Different connotations of the term
There are three important connotations to the term common law[4].
1. Common law as opposed to statutory law and regulatory law: The first connotation differentiates 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" (case 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 and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations.
2. Common law legal systems as opposed to civil law legal systems: The second connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions, case law was traditionally given less weight - for example the Napoleonic code expressly forbade French judges from pronouncing the law.[5]
3. 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). Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorizing and prioritizing rights to property, (b) determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.
Basic principles of 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 law 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). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the U.S. Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - but interpretation (that is, determining the fine boundaries) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.
In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date, and modern statutes can only be understood when one interprets the literal words of a criminal statute in light of that historical common law[6].
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction 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 compensation or other remedy available is limited to the remedy specified 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 the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. 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.
Common law adjudication
In a common law jurisdiction, to determine what "the law is" in a given situation, both judges and attorneys seeking to advise clients follow the same process. 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 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. The common law is more maleable 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, in the manner of a alive 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, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively)[7].
In many subject matter areas, legal treatises compile common law decisions and state overarching principles that, in the author's opinion, explain the results of the cases. However, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
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 U.K. and U.S. 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.[8] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, 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 non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.
History of the common law
England before 1600
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[9].
Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts 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 cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
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 of 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.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would 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, which is where 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. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, 'common law'.
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. Things were resolved eventually, at least for a time, in Henry's favour when four of his knights, hoping to curry favour with him, murdered Becket in Canterbury Cathedral.
Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws.
The Common Law in the colonies and commonwealth - Reception statutes[10]
In the United States, following the American Revolution, one of the first legislative acts taken by the newly independent states was to adopt "reception statutes" receiving the English Common Law.[11] Some of these reception statutes were ordinary legislative acts, whereas some of them were implemented via state constitutions. For example, the New York Constitution of 1777[12] stated (in Article 35) that:
Alexander Hamilton emphasized in The Federalist that this state constitutional provision in New York expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." Thus, even when a reception statute was embodied in a state constitution, the common law was still subject to alteration by legislatures.
The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed (in Article Two) "judicial proceedings according to the course of the common law." This provision operated as a type of reception statute in the vast territories where no states had yet been established. The primary author of the Northwest Ordinance was Nathan Dane, and he viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law.”[13]
As more territories of the United States were granted statehood by Congress, the new states adopted reception statutes, just as their territorial legislatures had done. Here is an example of a reception statute enacted by ordinary legislation, in the state of Washington:"The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."
1870 through 20th Century - 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) 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. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.
In the United States, parallel systems of law (providing money damages, heard by a jury if either party so requests) 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.
[1] R. C. van Caenegem ,The Birth of the English Common Law, Cambridge University , 1973,p22.
[2] William W. Crosskey,Politics and the Constitution in the History of the United States, University Of Chicago , 1980,pp852-853.
[3] James Kent,Commentaries on American Law, unknown imprint,pp477-478.
[4] Oliver Wendell Holmes ,The Common Law, Kessinger Publishing – 2005,pp45-46.
[5] This is changing, and French courts are gradually giving more weight to decisions of other courts.
[6]Fr more details see, Henry Maddock, Thomas Huntington, A Treatise on the Principles and Practice of the High Court of Chancery,
...
[7] See more in Guido Calabresi A Common Law for the Age of Statutes.
[8] See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law" (2006). 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 applicable facts in 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. As a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the caselaw of the common law courts of even a smaller jurisdiction.
[9]Matthew Hale, The History of the Common Law of England, University of Chicago Press,p33-35.
[10] For more see Paul Samuel Reinsch, English Common Law In The Early American Colonies.
[11] Glenn Lammi and James Chang, "Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws", 2004.
[12] New York Constitution of 1777 via Avalon Project at Yale Law School.
[13] Nathan Dane, 6 General Abridgment and Digest of American Law, art. 5, 230 ,Cummings, Hilliard & Co. 1823.
Common law
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
In common law legal systems, judges have the authority and duty to decide what the law is when there is no other authoritative statement of the law. Once an appellate court has decided what the law is, that precedent tends to bind future decisions of the same appellate court, and binds all lower courts reviewed by that appellate court, when the facts of the case are similar, until there is another authoritative statement of the law (e.g. by a legislature or higher court). The common law forms a major part of the legal systems of those countries of the world with a history as territories or colonies of the British Empire. It is notable for its inclusion of extensive non-statutory law reflecting precedent (stare decisis) derived from centuries of judgments by working jurists[1].
Common law legal systems
The common law constitutes the basis of the legal systems of: England and 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, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries (except Malta and Scotland and the Canadian province of Quebec)). Essentially, every country which has been colonized at some time by England, Great Britain, or the United Kingdom uses common law except those that had been formerly colonized by other nations, such as Quebec (which follows French law to some extent), 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. India's system of common law is also a mixture of English law and the local Hindu law, except in the state of Goa which retains the Portuguese civil code.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for example, in matters of criminal law, commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s).
Scotland is often said to use the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages). Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic (or 'mixed') legal systems operate in Quebec, Louisiana and South Africa.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth 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.
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws 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 original colony of New Netherlands 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. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English 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-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth 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.
United States federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. Up until 1938, the federal courts followed the doctrine set forth in the 1842 case of Swift v. Tyson. In that case, 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. In 1938, the Supreme Court decided Erie Railroad v. Tompkins. Erie over-ruled Swift v. Tyson, and instead held that federal courts exercising diversity jurisdiction had to use all of the same substantive laws as the courts of the states in which they were located. As the Erie Court put it, there is no "general federal common law", the key word here being general. Erie did not put an end to other types of federal common law in certain areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests. Congress is free to modify the federal common law[2].
Works on the common law
The 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.
In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, etc.), 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[3].
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.
Different connotations of the term
There are three important connotations to the term common law[4].
1. Common law as opposed to statutory law and regulatory law: The first connotation differentiates 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" (case 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 and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) decisions that discuss and decide the fine boundaries and distinctions in written laws promulgated by other bodies, such as the Constitution, statutes and regulations.
2. Common law legal systems as opposed to civil law legal systems: The second connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" just as are statutes. By contrast, in civil law jurisdictions, case law was traditionally given less weight - for example the Napoleonic code expressly forbade French judges from pronouncing the law.[5]
3. 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). Although the separate courts were merged long ago in most jurisdictions, or at least all courts were permitted to apply both law and equity (though under potentially different laws of procedure), the distinction between law and equity remains important in (a) categorizing and prioritizing rights to property, (b) determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue may be decided by a judge (issues of what the law is, and all issues relating to equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.
Basic principles of 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 law 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). To find out what the precise law is that applies to a particular set of facts, one has to locate precedential decisions on the topic, and reason from those decisions by analogy. To consider but one example, the First Amendment to the U.S. Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" - but interpretation (that is, determining the fine boundaries) of each of the important terms was delegated by Article III of the Constitution to the judicial branch, so that the current legal boundaries of the Constitutional text can only be determined by consulting the common law.
In common law jurisdictions, legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law case law and custom, and so may leave a number of things unsaid. For example, in most U.S. states, the criminal statutes are primarily codification of pre-existing common law. (Codification is the process of enacting a statute that collects and restates pre-existing law in a single document - when that pre-existing law is common law, the common law remains relevant to the interpretation of these statutes.) This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date, and modern statutes can only be understood when one interprets the literal words of a criminal statute in light of that historical common law[6].
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction 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 compensation or other remedy available is limited to the remedy specified 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 the courts generally recognize the legislature as being supreme in deciding the reach of judge-made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. 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.
Common law adjudication
In a common law jurisdiction, to determine what "the law is" in a given situation, both judges and attorneys seeking to advise clients follow the same process. 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 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. The common law is more maleable 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, in the manner of a alive 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, the legislative process is very difficult to get started: legislatures do not act until a situation is totally intolerable. Because of this, legislative changes tend to be large, jarring and disruptive (either positively or negatively)[7].
In many subject matter areas, legal treatises compile common law decisions and state overarching principles that, in the author's opinion, explain the results of the cases. However, treatises are not the law, and lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases.
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 U.K. and U.S. 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.[8] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, 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 non-common-law countries, fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult. Thus, in jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance must often leave a bigger "safety margin" of unexploited opportunities.
History of the common law
England before 1600
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[9].
Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts 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 cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
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 of 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.
Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would 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, which is where 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. By this system of precedent, decisions 'stuck' and became ossified, and so the pre-Norman system of disparate local customs was replaced by an elaborate and consistent system of laws that was common throughout the whole country, hence the name, 'common law'.
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. Things were resolved eventually, at least for a time, in Henry's favour when four of his knights, hoping to curry favour with him, murdered Becket in Canterbury Cathedral.
Thus, in English legal history, judicially-developed "common law" became the uniform authority throughout the realm several centuries before Parliament acquired the power to make laws.
The Common Law in the colonies and commonwealth - Reception statutes[10]
In the United States, following the American Revolution, one of the first legislative acts taken by the newly independent states was to adopt "reception statutes" receiving the English Common Law.[11] Some of these reception statutes were ordinary legislative acts, whereas some of them were implemented via state constitutions. For example, the New York Constitution of 1777[12] stated (in Article 35) that:
Alexander Hamilton emphasized in The Federalist that this state constitutional provision in New York expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." Thus, even when a reception statute was embodied in a state constitution, the common law was still subject to alteration by legislatures.
The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed (in Article Two) "judicial proceedings according to the course of the common law." This provision operated as a type of reception statute in the vast territories where no states had yet been established. The primary author of the Northwest Ordinance was Nathan Dane, and he viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law.”[13]
As more territories of the United States were granted statehood by Congress, the new states adopted reception statutes, just as their territorial legislatures had done. Here is an example of a reception statute enacted by ordinary legislation, in the state of Washington:"The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."
1870 through 20th Century - 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) 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. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict.
In the United States, parallel systems of law (providing money damages, heard by a jury if either party so requests) 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.
[1] R. C. van Caenegem ,The Birth of the English Common Law, Cambridge University , 1973,p22.
[2] William W. Crosskey,Politics and the Constitution in the History of the United States, University Of Chicago , 1980,pp852-853.
[3] James Kent,Commentaries on American Law, unknown imprint,pp477-478.
[4] Oliver Wendell Holmes ,The Common Law, Kessinger Publishing – 2005,pp45-46.
[5] This is changing, and French courts are gradually giving more weight to decisions of other courts.
[6]Fr more details see, Henry Maddock, Thomas Huntington, A Treatise on the Principles and Practice of the High Court of Chancery,
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[7] See more in Guido Calabresi A Common Law for the Age of Statutes.
[8] See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law" (2006). 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 applicable facts in 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. As a practical matter, no civil law legislature can ever address the full spectrum of factual possibilities in the breadth, depth and detail of the caselaw of the common law courts of even a smaller jurisdiction.
[9]Matthew Hale, The History of the Common Law of England, University of Chicago Press,p33-35.
[10] For more see Paul Samuel Reinsch, English Common Law In The Early American Colonies.
[11] Glenn Lammi and James Chang, "Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws", 2004.
[12] New York Constitution of 1777 via Avalon Project at Yale Law School.
[13] Nathan Dane, 6 General Abridgment and Digest of American Law, art. 5, 230 ,Cummings, Hilliard & Co. 1823.
