COMMON LAW
The ancient law of England based upon societal
customs and recognized and enforced by the judg-
ments 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 judi-
cial tribunals.
A designation used to denote the opposite of
statutory, equitable, or civil, for example, a com-
mon-law action.
The common-law system prevails in Eng-
land, the United States, and other countries col-
onized 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 CRIM-
INAL LAW to form a hybrid system. The com-
mon-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 dis-
putes 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 com-
mon-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 insti-
tuted. Code pleading requires only a plain, fac-
tual 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. Com-
mon-law judges rely on their predecessors’ deci-
sions of actual controversies, rather than on
abstract codes or texts, to guide them in apply-
ing 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 consid-
ered 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 deci-
sions for guidance in a CASE OF FIRST IMPRES-
SION (previously undetermined legal issue). The
common-law system allows judges to look to
other jurisdictions or to draw upon past or pres-
ent judicial experience for analogies to help in
making a decision. This flexibility allows com-
mon law to deal with changes that lead to unan-
ticipated controversies. At the same time, stare
decisis provides certainty, uniformity, and pre-
dictability and makes for a stable legal environ-
ment.
Under a common-law system, disputes are
settled through an adversarial exchange of argu-
ments and evidence. Both parties present their
cases before a neutral fact finder, either a judge
or a jury. The judge or jury evaluates the evi-
dence, 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 exer-
cise 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.
