A source of the law of many countries, derived largely from custom. The system of common law (general) replaced over a period of centuries local courts and customs. In England, Henry II was particularly influential in developing the common law by, for example, sending out royal representatives on circuit. The common law, supplemented by equity, was separately administered by the Courts of the King's Bench, Common Pleas, and Exchequer until the Judicature Acts (19735). The common law tradition is one which emphasizes the development of law through individual cases rather than prescriptive codes, and is also the foundation of most US law. Common law, accordingly, tends to be judge-made law rather than statute law. It was defined by Blackstone as the common sense of the community, crystalized and formulated by our forefathers.
| The Common law |
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| Contract law |
| Tort law |
| Property law |
| Wills and trusts |
| Criminal law |
| Evidence |
The common law forms a major part of the law of those countries of the world with a history as British territories or colonies.
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" 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 20th century, and (b) decisions that discuss and decide the fine boundaries and distinctions in statutes and regulations. See statutory law and non-statutory law. 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). 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 recognised only the legal owner of property, and courts of "equity" that recognised 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) categorising and prioritising rights to property, (b) determining whether the Seventh Amendment's guarantee of a jury trial applies (a determination of a fact necessary to resolution of a "law" claim) or whether the issue can only be decided by a judge (issues of equity), and (c) in the principles that apply to the grant of equitable remedies by the courts.Many important areas of law are governed primarily by common law. For example, in England and Wales and in most states of the United States, the basic law of contracts and torts does not exist in statute, but only in common law. In almost all areas of the law, statutes may give only terse statements of general principle, but the fine boundaries and definitions exist only in the common law.
History of the common law
Common law originally developed under the inquisitorial system in England from judicial decisions that were based in tradition, custom, and precedent. 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. 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.
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 United States federal courts procedurally separated law and equity until they were combined by the Federal Rules of Civil Procedure in 1938 - the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, under two separate sets of procedural rules.
Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.
Common law legal systems
The common law constitutes the basis of the legal systems of: England and Wales, 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, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised 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.
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 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 1960's) and procedure (the Federal Rules of Civil Procedure in the 1930's and the Federal Rules of Evidence in the 1970's).
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. 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.
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. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)
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 codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
The United States federal government (as opposed to the states) has a variant on a common law system. The courts only act as interpreters of statutes and the constitution (to elaborate and precisely define the broad language, connotation 1(a) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(b) above). United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government).
Basic principles of common law
Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practised in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practised in England only after that date.
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. 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.
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. 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. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines.
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