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In law, common law (also known as judicial precedent, judge-made law, or
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
) is the body of law created by judges and similar quasi-judicial
tribunals A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a singl ...
by virtue of being stated in written opinions."The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified," ''Southern Pacific Company v. Jensen'', 244 U.S. 205, 222 (1917) (Oliver Wendell Holmes, dissenting). By the early 20th century, legal professionals had come to reject any idea of a higher or natural law, or a law above the law. The law arises through the act of a sovereign, whether that sovereign speaks through a legislature, executive, or judicial officer. The defining characteristic of common law is that it arises as
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
. Common law courts look to the past decisions of courts to synthesize the legal principles of past cases. ''
Stare decisis A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...
'', the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems. If a court finds that a similar dispute as the present one has been resolved in the past, the court is generally bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (a " matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The
opinion An opinion is a judgment, viewpoint, or statement that is not conclusive, rather than facts, which are true statements. Definition A given opinion may deal with subjective matters in which there is no conclusive finding, or it may deal with ...
that a common law judge gives agglomerates with past decisions as
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
to bind future judges and litigants. The common law, so named because it was "common" to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the
Norman Conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conq ...
in 1066. The
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...
later spread the English legal system to its colonies, many of which retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the
English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ...
legal system.Charles Arnold-Baker, ''The Companion to British History'', s.v. "English Law" (London: Loncross Denholm Press, 2008), 484. The term "common law", referring to the body of law made by the
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.") is often distinguished from
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
and
regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. ...
s, which are laws adopted by the
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
and
executive Executive ( exe., exec., execu.) may refer to: Role or title * Executive, a senior management role in an organization ** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators ** Executive di ...
respectively. In legal systems that recognise the common law, judicial precedent stands in contrast to and on equal footing with
statutes A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made ...
. The other major legal system used by countries is the civil law, which codifies its legal principles into
legal codes A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the cod ...
and does not recognise judicial opinions as binding. Today, one-third of the world's population lives in common law jurisdictions or in mixed legal systems that combine the common law with the civil law, including Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its
provinces A province is almost always an administrative division within a country or state. The term derives from the ancient Roman '' provincia'', which was the major territorial and administrative unit of the Roman Empire's territorial possessions ou ...
except Quebec),
Cyprus Cyprus ; tr, Kıbrıs (), officially the Republic of Cyprus,, , lit: Republic of Cyprus is an island country located south of the Anatolian Peninsula in the eastern Mediterranean Sea. Its continental position is disputed; while it is ...
, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong,
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
, Ireland,
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, Jamaica, Kenya, Liberia, Malaysia,
Malta Malta ( , , ), officially the Republic of Malta ( mt, Repubblika ta' Malta ), is an island country in the Mediterranean Sea. It consists of an archipelago, between Italy and Libya, and is often considered a part of Southern Europe. It lies ...
, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria,
Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore,
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...
, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its
overseas territories A territory is an area of land, sea, or space, particularly belonging or connected to a country, person, or animal. In international politics, a territory is usually either the total area from which a state may extract power resources or an ...
such as Gibraltar), the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
(both the
federal system Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (provincial, state, cantonal, territorial, or other sub-unit governments) in a single p ...
and 49 of its 50 states), and Zimbabwe.


Definitions

The term ''common law'' has many connotations. The first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen and are sometimes heard in everyday speech.


Common law as opposed to statutory law and regulatory law

The first definition of "common law" given in ''
Black's Law Dictionary ''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary. History The first edition was published in 1891 by West ...
'', 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions; ynonymCASELAW, ontrastSTATUTORY LAW". This usage is given as the first definition in modern legal dictionaries, is characterized as the "most common" usage among legal professionals, and is the usage frequently seen in decisions of courts.For an example of this usage in a decision of the United States Supreme Court, see the quote from ''United States v Texas'' in the section " Interaction of constitutional, statutory and common law" below. In this connotation, "common law" distinguishes the authority that promulgated a law. For example, the law in most
Anglo-America Anglo-America most often refers to a region in the Americas in which English is the main language and British culture and the British Empire have had significant historical, ethnic, linguistic, and cultural impact."Anglo-America", vol. 1, Micro ...
n
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
s includes "
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
" enacted by a
legislature A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government. Laws enacted by legislatures are usually known ...
, " regulatory law" (in the U.S.) or " delegated legislation" (in the U.K.) promulgated by
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...
agencies pursuant to delegation of rule-making authority from the legislature, and common law or "
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
", ''i.e.'', decisions issued by
courts A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...
(or
quasi-judicial A quasi-judicial body is non-judicial body which can interpret law. It is an entity such as an arbitration panel or tribunal board, that can be a public administrative agency but also a contract- or private law entity, which has been ...
tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a single ...
s within agencies). This first connotation can be further differentiated into: ; (a) general common law: arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
and
procedural law Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules a ...
before the 20th century, and even today, most
contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...
and the law of torts.Stuart Speiser, et al., The American Law of Torts, §§ 1:2, 1:5, and 1:6, Thompson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance f courtsto overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).''E.g.'', Hadley v Baxendale (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute); ''Marbury v. Madison'', 137 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.");''MacPherson v. Buick Motor Co.'', 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (discussed elsewhere in this article, adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute); Alexander Hamilton, ''
The Federalist ''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The co ...
'', Nos. 78 and 81 (J. Cooke ed. 1961), 521–30, 541–55 ("The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."); see
rule against perpetuities The rule against perpetuities is a legal rule in the American common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of p ...
for a judicially created law originating in 1682 that governs the validity of trusts and future interests in
real property In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
, Rule in Shelley's Case for a rule created by judges in 1366 or before, and
life estate In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may ...
and
fee simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
for rules of real property ownership that were judicially created in the late 12th century as the crown began to give law-making power to courts.
; (b) interstitial common law: court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called "interstitial common law", includes judicial interpretation of the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these pr ...
, of legislative statutes, and of agency regulations, and the application of law to specific facts. Publication of decisions, and indexing, is essential to the development of common law, and thus governments and private publishers publish law reports. While all decisions in
common law jurisdictions In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
are precedent (at varying levels and scope as discussed throughout the article on
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
), some become "leading cases" or "landmark decisions" that are cited especially often.


Common law legal systems as opposed to civil law legal systems

''Black's Law Dictionary'' 10th Ed., definition 2, differentiates "common law" jurisdictions and legal systems from " civil law" or "
code In communications and information processing, code is a system of rules to convert information—such as a letter, word, sound, image, or gesture—into another form, sometimes shortened or secret, for communication through a communicati ...
" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean. By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute. Civil law judges tend to give less weight to judicial precedent, which means that a civil law judge deciding a given case has more freedom to interpret the text of a statute independently (compared to a common law judge in the same circumstances), and therefore less predictably. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law. The role of providing overarching principles, which in common law jurisdictions is provided in judicial opinions, in civil law jurisdictions is filled by giving greater weight to scholarly literature, as explained
below Below may refer to: *Earth * Ground (disambiguation) *Soil *Floor * Bottom (disambiguation) *Less than *Temperatures below freezing *Hell or underworld People with the surname *Ernst von Below (1863–1955), German World War I general *Fred Below ...
. Common law systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the ''
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperors, Byzantine Emperor. It is also ...
'' of
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
.


Law as opposed to equity

''Black's Law Dictionary'' 10th Ed., definition 4, differentiates "common law" (or just "law") from "
equity Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
". Before 1873,
England England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe ...
had two complementary court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (
courts of chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of eq ...
) that could issue
injunctive relief An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or i ...
(that is, a
court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out ...
to a party to do something, give something to someone, or stop doing something) and recognized
trusts A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "sett ...
of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Additionally, even before the separate courts were merged, most courts were permitted to apply both law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following: * categorizing and prioritizing
rights to property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
—for example, the same article of property often has a " legal title" and an " equitable title", and these two groups of ownership rights may be held by different people. * in the United States, determining whether the Seventh Amendment's right to a
jury trial A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions. Jury trials are used in a signific ...
applies (a determination of a fact necessary to resolution of a "common law" claim) vs. whether the issue will be decided by a
judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
(issues of what the law is, and all issues relating to equity). * the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review (issues of law are reviewed ''de novo'', that is, "as if new" from scratch by the appellate tribunal, while most issues of equity are reviewed for "abuse of discretion", that is, with great deference to the tribunal below). * the remedies available and rules of procedure to be applied. Courts of equity rely on common law (in the sense of this first connotation) principles of binding precedent.


Archaic meanings and historical uses

In addition, there are several historical (but now archaic) uses of the term that, while no longer current, provide background context that assists in understanding the meaning of "common law" today. In one usage that is now archaic, but that gives insight into the history of the common law, "common law" referred to the pre-Christian system of law, imported by the Saxons to England, and dating to before the
Norman conquest The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conq ...
, and before there was any consistent law to be applied.One example of this usage is in a letter from Thomas Jefferson to Dr. Thomas Cooper. Another example of this usage is in another letter of Jefferson, to John Cartright. "Common law" as the term is used today in common law countries contrasts with '' ius commune''. While historically the ''ius commune'' became a secure point of reference in continental European legal systems, in England it was not a point of reference at all. David John Ibbetson, ''Common Law and Ius Commune'' p. 20 (2001) The English
Court of Common Pleas A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
dealt with lawsuits in which the Monarch had no interest, i.e., between commoners. ''Black's Law Dictionary'' 10th Ed., definition 3 is "General law common to a country as a whole, as opposed to special law that has only local application." From at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice in "
assize The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
s". The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.


Misconceptions and imprecise nonlawyer usages

As used by non-lawyers in popular culture, the term "common law" connotes law based on ancient and unwritten universal custom of the people.West's encyclopedia of American law, defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts." The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century. However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law, and it is not held within the legal profession today. The "ancient unwritten universal custom" definition was given in 19th-century editions of ''
Black's Law Dictionary ''Black's Law Dictionary'' is the most frequently used legal dictionary in the United States. Henry Campbell Black (1860–1927) was the author of the first two editions of the dictionary. History The first edition was published in 1891 by West ...
'' ("the common law comprises the body of those principles and rules of action ... which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England"), but that definition was removed by the late 20th Century, and remains absent from the 10th Edition.
states twelve definitions for "common law," none of which reflect the "ancient unwritten universal custom" view. Under the modern view, "common law" is not grounded in "custom" or "ancient usage", but rather acquires force of law instantly (without the delay implied by the term "custom" or "ancient") when pronounced by a higher court, because and to the extent the proposition is stated in judicial opinion. From the earliest times through the late 19th century, the dominant theory was that the common law was a pre-existent law or system of rules, a social standard of justice that existed in the habits, customs, and thoughts of the people. Under this older view, the legal profession considered it no part of a judge's duty to make new or change existing law, but only to expound and apply the old. By the early 20th century, largely at the urging of Oliver Wendell Holmes (as discussed throughout this article), this view had fallen into the minority view: Holmes pointed out that the older view worked undesirable and unjust results, and hampered a proper development of the law. In the century since Holmes, the dominant understanding has been that common law "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law". Holmes wrote in a 1917 opinion, "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified." Among legal professionals (lawyers and judges), the change in understanding occurred in the late 19th and early 20th centuries (as explained later in this article), though lay (non-legal) dictionaries were decades behind in recognizing the change. The reality of the modern view, and implausibility of the old "ancient unwritten universal custom" view, can be seen in practical operation: under the pre-1870 view, (a) the "common law" should have been absolutely static over centuries (but it evolved), (b) jurisdictions could not logically diverge from each other (but nonetheless did and do today), (c) a new decision logically needed to operate retroactively (but did not), and (d) there was no standard to decide which English medieval customs should be "law" and which should not. All five tensions resolve under the modern view: (a) the common law evolved to meet the needs of the times (''e.g.'',
trial by combat Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the ...
passed out of the law very early), (b) the common law in different jurisdictions may diverge, (c) new decisions may (but need not) have retroactive operation, and (d) court decisions are effective immediately as they are issued, not years later, or after they become "custom", and questions of what "custom" might have been at some "ancient" time are simply irrelevant. * Common law, as the term is used among lawyers in the present day, is not grounded in "custom" or "ancient usage." Common law acquires force of law because it is pronounced by a court (or similar tribunal) in an opinion. * Common law is not frozen in time, and no longer beholden to 11th-, 13th-, or 17th-century English law. Rather, the common law evolves daily and immediately as courts issue precedential decisions (as explained later in this article), and all parties in the legal system (courts, lawyers, and all others) are responsible for up-to-date knowledge. There is no fixed reference point (for example the 11th or 18th centuries) for the definition of "common law", except in a handful of isolated contexts. Much of what was "customary" in the 13th or 17th or 18th century has no part of the common law today; much of the common law today has no antecedent in those earlier centuries. * The common law is not "unwritten". Common law exists in writing—as must any law that is to be applied consistently—in the written decisions of judges. * Common law is not the product of "universal consent". Rather, the common law is often anti-majoritarian. People using pseudolegal tactics and arguments have frequently claimed to base themselves on common law; notably, the radical anti-government sovereign citizens and
freemen on the land The freeman on the land movement (sometimes spelled freeman-on-the-land or abbreviated as FOTL), also known as the freemen of the land, the freemen movement, or simply freemen, is a loose group of individuals who adhere to pseudolegal concepts ...
movements, who deny the legitimacy of their countries' legal systems, base their beliefs on idiosyncratic interpretations of common law. "Common law" has also been used as an alibi by groups such as the far-right American
Patriot movement In the United States, the patriot movement is a term which is used to describe a conglomeration of non-unified right-wing populist, nationalist political movements, most notably far-right armed militias, sovereign citizens, and tax proteste ...
for setting up kangaroo courts in order to conduct vigilante actions or intimidate their opponents.


Basic 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. In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by
appellate courts A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law,
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
,
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
and regulatory law also give rise to considerable complexity.


Common law evolves to meet changing social needs and improved understanding

Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions." Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but " s method is inductive, and it draws its generalizations from particulars". The common law is more malleable 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, without legislative intervention, to adapt to new trends in political, legal and
social philosophy Social philosophy examines questions about the foundations of social institutions, social behavior, and interpretations of society in terms of ethical values rather than empirical relations. Social philosophers emphasize understanding the social ...
. 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 to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences). One example of the gradual change that typifies evolution of the common law is the gradual change in liability for negligence. The traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in
privity of contract The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. The premise is that only parties to contracts should be ...
. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. In an 1842 English case, ''
Winterbottom v. Wright ''Winterbottom v Wright'' (184210 M&W 109was an important case in English common law responsible for constraining the law's 19th-century stance on negligence. Facts The plaintiff Winterbottom had been contracted by the Postmaster-General to driv ...
'', the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The ''Winterbottom'' court recognized that there would be "absurd and outrageous consequences" if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract ("privity") with the negligent party. A first exception to this rule arose in 1852, in the case of ''
Thomas v. Winchester ''Thomas v. Winchester'', 6 N.Y. 397 (1852), which established the "imminent danger to human life" doctrine, was at the head of the cases in assaulting the protective wall of privity in the tort field. Subsequent examples include: '' MacPherson v. ...
'', when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put "human life in imminent danger". ''Thomas'' relied on this reason to create an exception to the "privity" rule. In 1909, New York held in ''Statler v. Ray Mfg. Co.'' that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed". Yet the privity rule survived. In ''Cadillac Motor Car Co. v. Johnson'' (decided in 1915 by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and 'dozy' wood, quite insufficient for its purposes." The ''Cadillac'' court was willing to acknowledge that the case law supported exceptions for "an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the ''Cadillac'' court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud," Finally, in the famous case of ''
MacPherson v. Buick Motor Co. ''MacPherson v. Buick Motor Co.''is a famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo that removed the requirement of privity of contract for duty in negligence actions. Facts The plaintiff, Donald C. MacPherson, a stonecutt ...
'', in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to ''Cadillac'' a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held: Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger". ''MacPherson'' takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of '' Winterbottom'', that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that ''some'' boundary is necessary, '' MacPherson'' overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing. The example of the evolution of the law of negligence in the preceding paragraphs illustrates two crucial principles: (a) The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.


Publication of decisions

All law systems rely on written publication of the law, so that it is accessible to all. Common law decisions are published in law reports for use by lawyers, courts and the general public. After the American Revolution, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.Social Law Library, Common Law or Civil Code?, Boston Mass. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw," while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.


Interaction of constitution, statute, and executive branch regulation with common law

In common law legal systems, the common law is crucial to understanding almost all important areas of law. For example, in
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is En ...
, in English Canada, and in most states of the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, the basic law of
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
s,
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s and
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). As another example, the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
in 1877, held that a
Michigan Michigan () is a state in the Great Lakes region of the upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the 10th-largest state by population, the 11th-largest by area, and t ...
statute that established rules for
solemnization {{Short pages monitor 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 (as opposed to equity)) 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 Equity may refer to: Finance, accounting and ownership *Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the diff ...
, administered by the
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...
, 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. In England, courts of law (as opposed to equity) were combined with courts of equity by the
Judicature Acts In the history of the courts of England and Wales, the Judicature Acts were a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two Acts were the Supr ...
of 1873 and 1875, with equity prevailing in case of conflict. In the United States, parallel systems of
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
(providing money
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
, with cases heard by a jury upon either party's request) 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 The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primaril ...
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 The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enablin ...
combined
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
and equity into one form of action, the "civil action". Fed.R.Civ.P. . The distinction survives to the extent that issues that were "common law (as opposed to equity)" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge. The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided courts of law and courts of chancery, for example, the
Delaware Court of Chancery The Delaware Court of Chancery is a court of equity in the American state of Delaware. It is one of Delaware's three constitutional courts, along with the Supreme Court and Superior Court. Since 2018, the court consists of seven judges. The chie ...
. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division.


Common law pleading and its abolition in the early 20th century

For centuries, through to the 19th century, the common law recognized only specific forms of action, and required very careful drafting of the opening pleading (called a
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
) to slot into exactly one of them:
debt Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to another party, the creditor. Debt is a deferred payment, or series of payments, which differentiates it from an immediate purchase. The ...
, detinue,
covenant Covenant may refer to: Religion * Covenant (religion), a formal alliance or agreement made by God with a religious community or with humanity in general ** Covenant (biblical), in the Hebrew Bible ** Covenant in Mormonism, a sacred agreement b ...
, special assumpsit, general assumpsit,
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery, woundi ...
,
trover Trover () is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value ...
,
replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replev ...
, case (or trespass on the case), and
ejectment Ejectment is a common law term for civil action to recover the possession of or title to land. It replaced the old real actions and the various possessory assizes (denoting county-based pleas to local sittings of the courts) where boundary dis ...
. To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific "magic words" encrusted over the centuries. Under the old common law pleading standards, a suit by a ''pro se'' ("for oneself", without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues. One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements. A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong. This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.


Alternatives to common law systems


Civil law systems—comparisons and contrasts to common law

The main alternative to the common law system is the civil law system, which is used in
Continental Europe Continental Europe or mainland Europe is the contiguous continent of Europe, excluding its surrounding islands. It can also be referred to ambiguously as the European continent, – which can conversely mean the whole of Europe – and, by ...
, and most of
Central Central is an adjective usually referring to being in the center of some place or (mathematical) object. Central may also refer to: Directions and generalised locations * Central Africa, a region in the centre of Africa continent, also known a ...
and
South America South America is a continent entirely in the Western Hemisphere and mostly in the Southern Hemisphere, with a relatively small portion in the Northern Hemisphere at the northern tip of the continent. It can also be described as the sou ...
.


Judicial decisions play only a minor role in shaping civil law

The primary contrast between the two systems is the role of written decisions and precedent. In common law jurisdictions, nearly every case that presents a ''bona fide'' disagreement on the law is resolved in a written opinion. The legal reasoning for the decision, known as ''
ratio decidendi ''Ratio decidendi'' ( Latin plural ''rationes decidendi'') is a Latin phrase meaning "the reason" or "the rationale for the decision". The ''ratio decidendi'' is "the point in a case that determines the judgement" or "the principle that the case ...
'', not only determines the court's judgment between the parties, but also stands as precedent for resolving future disputes. In contrast, civil law decisions typically do not include explanatory opinions, and thus no precedent flows from one decision to the next. In common law systems, a single decided case is binding common law (connotation 1) to the same extent as statute or regulation, under the principle of ''stare decisis''. In contrast, in civil law systems, individual decisions have only advisory, not binding effect. In civil law systems, case law only acquires weight when a long series of cases use consistent reasoning, called '' jurisprudence constante''. Civil law lawyers consult case law to obtain their best prediction of how a court will rule, but comparatively, civil law judges are less bound to follow it. For that reason, statutes in civil law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court.


Adversarial system vs. inquisitorial system

Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator. Common law courts usually use an
adversarial system The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to det ...
, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, criminal proceedings proceed under an
inquisitorial system An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an ...
in which an examining magistrate serves two roles by developing the evidence and arguments for one side and then the other during the investigation phase. The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore, the president of the bench's view of the case is not neutral and may be biased while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused. The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change his or her evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to be served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation. In contrast, in an adversarial system, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented. "In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." This principle applies with force in all issues in criminal matters, and to factual issues: courts seldom engage in fact gathering on their own initiative, but decide facts on the evidence presented (even here, there are exceptions, for "legislative facts" as opposed to "adjudicative facts"). On the other hand, on issues of law, courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them. The United States Supreme Court regularly decides based on issues raised only in
amicus brief An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on ...
s from non-parties. One of the most notable such cases was '' Erie Railroad v. Tompkins'', a 1938 case in which neither party questioned the ruling from the 1842 case ''
Swift v. Tyson ''Swift v. Tyson'', 41 U.S. (16 Pet.) 1 (1842), was a case brought in diversity in the Circuit Court for the Southern District of New York on a bill of exchange accepted in New York in which the Supreme Court of the United States determined that U ...
'' that served as the foundation for their arguments, but which led the Supreme Court to overturn ''Swift'' during their deliberations. To avoid lack of notice, courts may invite briefing on an issue to ensure adequate notice. However, there are limits—an appeals court may not introduce a theory that contradicts the party's own contentions. There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (''e.g.'', a patent examiner, a social security hearing officer, and so on), even though the law to be applied is developed through common law processes.


Contrasting role of treatises and academic writings in common law and civil law systems

The role of the legal academy presents a significant "cultural" difference between common law ( connotation 2) and civil law jurisdictions. In both systems, treatises compile decisions and state overarching principles that (in the author's opinion) explain the results of the cases. In neither system are treatises considered "law," but the weight given them is nonetheless quite different. In common law jurisdictions, lawyers and judges tend to use these treatises as only "finding aids" to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. Chief Justice Roberts noted the "great disconnect between the academy and the profession." When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court's legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary. In contrast, in civil law jurisdictions, courts give the writings of law professors significant weight, partly because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale had to come from somewhere else: the academy often filled that role.


Narrowing of differences between common law and civil law

The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of
jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning ...
(similar to
case law Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of ...
but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries. Examples of common law being replaced by statute or codified rule in the United States include
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
(since 1812, U.S. federal courts and most but not all of the states have held that criminal law must be embodied in statute if the public is to have fair notice),
commercial law Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a branc ...
(the
Uniform Commercial Code The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through U ...
in the early 1960s) and procedure (the
Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enablin ...
in the 1930s and the
Federal Rules of Evidence First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local v ...
in the 1970s). But note that in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute. An example of convergence from the other direction is shown in the 1982 decision ''Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health'' (), in which the
European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European U ...
held that questions it has already answered need not be resubmitted. This showed how a historically distinctly common law principle is used by a court composed of judges (at that time) of essentially civil law jurisdiction.


Other alternatives

The former
Soviet Bloc The Eastern Bloc, also known as the Communist Bloc and the Soviet Bloc, was the group of socialist states of Central and Eastern Europe, East Asia, Southeast Asia, Africa, and Latin America under the influence of the Soviet Union that exist ...
and other socialist countries used a socialist law system, although there is controversy as to whether socialist law ever constituted a separate legal system or not. Much of the
Muslim world The terms Muslim world and Islamic world commonly refer to the Islamic community, which is also known as the Ummah. This consists of all those who adhere to the religious beliefs and laws of Islam or to societies in which Islam is practiced. I ...
uses legal systems based on
Sharia Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the H ...
(also called
Islamic law Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
). Many churches use a system of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
. The
canon law of the Catholic Church The canon law of the Catholic Church ("canon law" comes from Latin ') is "how the Church organizes and governs herself". It is the system of laws and ecclesiastical legal principles made and enforced by the hierarchical authorities of the Cathol ...
influenced the common law during the medieval period through its preservation of
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
doctrine such as the
presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must presen ...
.


Common law legal systems in the present day


In jurisdictions around the world

The common law constitutes the basis of the legal systems of: *
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
(both federally and in each of the States and Territories), *
Bangladesh Bangladesh (}, ), officially the People's Republic of Bangladesh, is a country in South Asia. It is the eighth-most populous country in the world, with a population exceeding 165 million people in an area of . Bangladesh is among the mo ...
, *
Belize Belize (; bzj, Bileez) is a Caribbean and Central American country on the northeastern coast of Central America. It is bordered by Mexico to the north, the Caribbean Sea to the east, and Guatemala to the west and south. It also shares a wa ...
, * Brunei, * Canada (both federal and the individual provinces, with the exception of
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirte ...
), * the Caribbean jurisdictions of
Antigua and Barbuda Antigua and Barbuda (, ) is a sovereign country in the West Indies. It lies at the juncture of the Caribbean Sea and the Atlantic Ocean in the Leeward Islands part of the Lesser Antilles, at 17°N latitude. The country consists of two majo ...
, Barbados,
Bahamas The Bahamas (), officially the Commonwealth of The Bahamas, is an island country within the Lucayan Archipelago of the West Indies in the North Atlantic. It takes up 97% of the Lucayan Archipelago's land area and is home to 88% of the a ...
, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, *
Cyprus Cyprus ; tr, Kıbrıs (), officially the Republic of Cyprus,, , lit: Republic of Cyprus is an island country located south of the Anatolian Peninsula in the eastern Mediterranean Sea. Its continental position is disputed; while it is ...
*Ghana, *
Hong Kong Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a List of cities in China, city and Special administrative regions of China, special ...
, *
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
, *
Ireland Ireland ( ; ga, Éire ; Ulster-Scots: ) is an island in the North Atlantic Ocean, in north-western Europe. It is separated from Great Britain to its east by the North Channel, the Irish Sea, and St George's Channel. Ireland is the s ...
, *
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, * Kenya, *
Nigeria Nigeria ( ), , ig, Naìjíríyà, yo, Nàìjíríà, pcm, Naijá , ff, Naajeeriya, kcg, Naijeriya officially the Federal Republic of Nigeria, is a country in West Africa. It is situated between the Sahel to the north and the Gulf o ...
, *
Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federal constitutional monarchy consists of thirteen states and three federal territories, separated by the South China Sea into two regions: Peninsular Malaysia and Borneo's East Mal ...
, *
Malta Malta ( , , ), officially the Republic of Malta ( mt, Repubblika ta' Malta ), is an island country in the Mediterranean Sea. It consists of an archipelago, between Italy and Libya, and is often considered a part of Southern Europe. It lies ...
* Myanmar, *
New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...
, *
Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
, *
Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
, *
Singapore Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, bor ...
, *
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...
, *
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and ...
(both in
England England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe ...
,
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
,
Wales Wales ( cy, Cymru ) is a country that is part of the United Kingdom. It is bordered by England to the east, the Irish Sea to the north and west, the Celtic Sea to the south west and the Bristol Channel to the south. It had a population in ...
and
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label=Ulster Scots dialect, Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is #Descriptions, variously described as ...
), * United States (both the federal system and the individual states and
Territories A territory is an area of land, sea, or space, particularly belonging or connected to a country, person, or animal. In international politics, a territory is usually either the total area from which a state may extract power resources or a ...
, with the partial exception of
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...
and
Puerto Rico Puerto Rico (; abbreviated PR; tnq, Boriken, ''Borinquen''), officially the Commonwealth of Puerto Rico ( es, link=yes, Estado Libre Asociado de Puerto Rico, lit=Free Associated State of Puerto Rico), is a Caribbean island and unincorporated ...
), and many other generally
English-speaking countries The following is a list of English-speaking population by country, including information on both native speakers and second-language speakers. List * The European Union is a supranational union composed of 27 member states. The total E ...
or
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
countries (except the UK's
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
, which is bijuridicial, and
Malta Malta ( , , ), officially the Republic of Malta ( mt, Repubblika ta' Malta ), is an island country in the Mediterranean Sea. It consists of an archipelago, between Italy and Libya, and is often considered a part of Southern Europe. It lies ...
). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirte ...
(which follows the bijuridicial law or civil code of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life ...
of the local colonists. Guyana and Saint Lucia have mixed Common Law and Civil Law systems. The remainder of this section discusses jurisdiction-specific variants, arranged chronologically.


Scotland

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperors, Byzantine Emperor. It is also ...
with an element of its own common law long predating the Treaty of Union with England in 1707 (see
Legal institutions of Scotland in the High Middle Ages Scottish legal institutions in the High Middle Ages are, for the purposes of this article, the informal and formal systems which governed and helped to manage Scottish society between the years 900 and 1288, a period roughly corresponding with the ...
), founded on the customary laws of the tribes residing there. Historically,
Scottish common law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
differed in that the use of ''precedent'' was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a ''precedent'', and principles of
natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
and fairness have always played a role in Scots Law. From the 19th century, the Scottish approach to precedent developed into a ''stare decisis'' akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances. This is not to say that the substantive rules of the common laws of both countries are the same, but in many matters (particularly those of UK-wide interest), they are similar. Scotland shares the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK law of negligence is based on '' Donoghue v Stevenson'', a case originating in
Paisley, Scotland Paisley ( ; sco, Paisley, gd, Pàislig ) is a large town situated in the west central Lowlands of Scotland. Located north of the Gleniffer Braes, the town borders the city of Glasgow to the east, and straddles the banks of the White Cart Wate ...
. Scotland maintains a separate criminal law system from the rest of the UK, with the
High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...
being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the
Supreme Court of the United Kingdom The Supreme Court of the United Kingdom ( initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
(before October 2009, final appellate jurisdiction lay with the
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
).


United States


New York (17th century)

The original colony of
New Netherland New Netherland ( nl, Nieuw Nederland; la, Novum Belgium or ) was a 17th-century colonial province of the Dutch Republic that was located on the east coast of what is now the United States. The claimed territories extended from the Delmarva ...
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. In 1664, the colony of
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the
Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...
were resolving disputes learnedly in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers. When the English finally regained control of New Netherland they imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the
feudal system Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structu ...
and civil law, continued to operate in the colony until it was abolished in the mid-19th century. New York began a codification of its law 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 Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...
. The influence of
Roman-Dutch law Roman-Dutch law ( Dutch: ''Rooms-Hollands recht'', Afrikaans: ''Romeins-Hollandse reg'') is an uncodified, scholarship-driven, and judge-made legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, ...
continued in the colony well into the late 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.


Louisiana (1700s)

Under Louisiana's codified system, the Louisiana Civil Code, private law—that is,
substantive law Substantive law is the set of laws that governs how members of a society are to behave.Substantive Law vs. Procedural Law: Definitions and Differences, Study.com/ref> It is contrasted with procedural law, which is the set of procedures for making, ...
between private sector parties—is based on principles of law from continental Europe, with some common law influences. These principles derive ultimately from
Roman law Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the '' Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, transmitted through
French law The Law of France refers to the legal system in the French Republic, which is a civil law legal system primarily based on legal codes and statutes, with case law also playing an important role. The most influential of the French legal codes is t ...
and
Spanish law The Law of Spain is the legislation in force in the Kingdom of Spain, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in democratically elected institutions. Characteristi ...
, as the state's current territory intersects the area of North America colonized by Spain and by France. Contrary to popular belief, the Louisiana code does not directly derive from the Napoleonic Code, as the latter was enacted in 1804, one year after the
Louisiana Purchase The Louisiana Purchase (french: Vente de la Louisiane, translation=Sale of Louisiana) was the acquisition of the territory of Louisiana by the United States from the French First Republic in 1803. In return for fifteen million dollars, or ap ...
. However, the two codes are similar in many respects due to common roots. Louisiana's
criminal law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
largely rests on English common law. Louisiana's
administrative law Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as " regulations"), ...
is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's
procedural law Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, lawsuit, criminal or administrative proceedings. The rules a ...
is generally in line with that of other U.S. states, which in turn is generally based on the U.S.
Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enablin ...
. Historically notable among the Louisiana code's differences from common law is the role of property rights among women, particularly in inheritance gained by widows.


California (1850s)

The
U.S. state In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sove ...
of
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
has a system based on common law, but it has codified the law in the manner of civil law jurisdictions. The reason for the enactment of the
California Codes The California Codes are 29 legal codes enacted by the California State Legislature, which together form the general statutory law of California. The official Codes are maintained by the California Office of Legislative Counsel for the Legislatur ...
in the 19th 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. (Most notably, in the case ''
Li v. Yellow Cab Co. ''Li v. Yellow Cab Co.'', 13 Cal.3d 804, 532 P.2d 1226 (1975), commonly referred to simply as ''Li'', is a California Supreme Court case that judicially embraced comparative negligence in California tort law and rejected strict contributory negl ...
'', 13 Cal.3d 804 (1975), the
California Supreme Court The Supreme Court of California is the highest and final court of appeals in the courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly holds sessions in Los Angeles and Sac ...
adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of
contributory negligence In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negl ...
.)


United States federal courts (1789 and 1938)

The United States federal government (as opposed to the states) has a variant on a common law system.
United States federal courts The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primaril ...
only act as interpreters of statutes and the constitution by elaborating and precisely defining broad statutory language ( connotation 1(b) above), but, unlike state courts, do not generally act as an independent source of common law. Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. In 1938, the U.S. Supreme Court in ''
Erie Railroad Co. v. Tompkins ''Erie Railroad Co. v. Tompkins'', 304 U.S. 64 (1938), was a landmark U.S. Supreme Court decision in which the Court held that there is no general American federal common law and that U.S. federal courts must apply state law, not federal law, t ...
'
304 U.S. 64, 78
(1938), overruled earlier precedent, and held "There is no federal general common law," thus confining the federal courts to act only as interstitial interpreters of law originating elsewhere. ''E.g.'', ''Texas Industries v. Radcliff'', (without an express grant of statutory authority, federal courts cannot create rules of intuitive justice, for example, a right to contribution from co-conspirators). Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution. Later courts have limited ''Erie'' slightly, to create a few situations where
United States federal courts The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the United States Constitution and laws of the federal government. The U.S. federal judiciary consists primaril ...
are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government. ''See, e.g.'', ''
Clearfield Trust Co. v. United States ''Clearfield Trust Co. v. United States'', 318 U.S. 363 (1943), was a case in which the Supreme Court of the United States held that federal negotiable instruments were governed by federal law, and thus the federal court had the authority to fash ...
'', (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case
negotiable instrument A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, whose payer is usually named on the document. More specifically, it is a document contemplated by or consisting of a ...
s backed by the federal government); ''see also'' ''
International News Service v. Associated Press ''International News Service v. Associated Press'', 248 U.S. 215 (1918), also known as ''INS v. AP'' or simply the ''INS'' case, is a 1918 decision of the United States Supreme Court that enunciated the misappropriation doctrine of federal intell ...
''
248 U.S. 215
(1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding); ''but see National Basketball Association v. Motorola, Inc.'', 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of ''INS'' "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law). Except on Constitutional issues, Congress is free to legislatively overrule federal courts' common law.


United States executive branch agencies (1946)

Most executive branch agencies in the United States federal government have some adjudicatory authority. To greater or lesser extent, agencies honor their own precedent to ensure consistent results. Agency decision making is governed by the Administrative Procedure Act of 1946. For example, the National Labor Relations Board issues relatively few
regulations Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
, but instead promulgates most of its substantive rules through common law (connotation 1).


India, Pakistan, and Bangladesh (19th century and 1948)

The law of India, Pakistan, and Bangladesh are largely based on
English English usually refers to: * English language * English people English may also refer to: Peoples, culture, and language * ''English'', an adjective for something of, from, or related to England ** English national ...
common law because of the long period of British colonial influence during the period of the
British Raj The British Raj (; from Hindi ''rāj'': kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent; * * it is also called Crown rule in India, * * * * or Direct rule in India, * Quote: "Mill, who was him ...
.
Ancient India According to consensus in modern genetics, anatomically modern humans first arrived on the Indian subcontinent from Africa between 73,000 and 55,000 years ago. Quote: "Y-Chromosome and Mt-DNA data support the colonization of South Asia by ...
represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The ''
Arthashastra The ''Arthashastra'' ( sa, अर्थशास्त्रम्, ) is an Ancient Indian Sanskrit treatise on statecraft, political science, economic policy and military strategy. Kautilya, also identified as Vishnugupta and Chanakya, is ...
'', dating from 400 BCE and the ''
Manusmriti The ''Manusmṛiti'' ( sa, मनुस्मृति), also known as the ''Mānava-Dharmaśāstra'' or Laws of Manu, is one of the many legal texts and constitution among the many ' of Hinduism. In ancient India, the sages often wrote the ...
'', from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was cited across
Southeast Asia Southeast Asia, also spelled South East Asia and South-East Asia, and also known as Southeastern Asia, South-eastern Asia or SEA, is the geographical south-eastern region of Asia, consisting of the regions that are situated south of mainland ...
. Early in this period, which finally culminated in the creation of the
Gupta Empire The Gupta Empire was an ancient Indian empire which existed from the early 4th century CE to late 6th century CE. At its zenith, from approximately 319 to 467 CE, it covered much of the Indian subcontinent. This period is considered as the Gold ...
, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...
, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. After the failed
rebellion Rebellion, uprising, or insurrection is a refusal of obedience or order. It refers to the open resistance against the orders of an established authority. A rebellion originates from a sentiment of indignation and disapproval of a situation and ...
against the British in 1857, the
British Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...
took over control of India from the
British East India Company The East India Company (EIC) was an English, and later British, joint-stock company founded in 1600 and dissolved in 1874. It was formed to trade in the Indian Ocean region, initially with the East Indies (the Indian subcontinent and South ...
, and
British India The provinces of India, earlier presidencies of British India and still earlier, presidency towns, were the administrative divisions of British governance on the Indian subcontinent. Collectively, they have been called British India. In one ...
came under the direct rule of
the Crown The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differ ...
. The British Parliament passed the
Government of India Act 1858 The Government of India Act 1858 was an Act of the Parliament of the United Kingdom (21 & 22 Vict. c. 106) passed on 2 August 1858. Its provisions called for the liquidation of the British East India Company (who had up to this point been ruling ...
to this effect, which set up the structure of British government in India. It established in Britain the office of the
Secretary of State for India His (or Her) Majesty's Principal Secretary of State for India, known for short as the India Secretary or the Indian Secretary, was the British Cabinet minister and the political head of the India Office responsible for the governance of th ...
through whom the Parliament would exercise its rule, along with a
Council of India The Council of India was the name given at different times to two separate bodies associated with British rule in India. The original Council of India was established by the Charter Act of 1833 as a council of four formal advisors to the Governo ...
to aid him. It also established the office of the
Governor-General of India The Governor-General of India (1773–1950, from 1858 to 1947 the Viceroy and Governor-General of India, commonly shortened to Viceroy of India) was the representative of the monarch of the United Kingdom and after Indian independence in 1 ...
along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.


Post-partition India (1948)

Post-partition,
India India, officially the Republic of India (Hindi: ), is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area, the List of countries and dependencies by population, second-most populous ...
retained its common law system. Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the
Indian Constitution The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws. Indian laws also adhere to the
United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmoni ...
guidelines on
human rights law International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, a ...
and
environmental law Environmental law is a collective term encompassing aspects of the law that provide protection to the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental Legal doctrine, legal principles, focu ...
. Certain
international trade law International trade law includes the appropriate rules and customs for handling trade between countries. However, it is also used in legal writings as trade between private sectors. This branch of law is now an independent field of study as mo ...
s, such as those on
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
, are also enforced in India. The exception to this rule is in the state of Goa, annexed in stages in the 1960s through 1980s. In Goa, a Portuguese
uniform civil code The Uniform Civil Code ( Hindi: समान नागरिक संहिता, IAST: Samāna Nāgarika Saṃhitā) is a proposal in India to formulate and implement personal laws of citizens which apply on all citizens equally regardless o ...
is in place, in which all religions have a common law regarding marriages, divorces and adoption.


Post-partition Pakistan (1948)

Post-partition,
Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
retained its common law system.


Post-partition Bangladesh (1968)

Post-partition, Bangladesh retained its common law system.


Canada (1867)

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
has separate federal and provincial legal systems.


Canadian provincial legal systems

Each province and territory is considered a separate jurisdiction with respect to case law. Each has its own procedural law in civil matters, statutorily created provincial courts and superior trial courts with inherent jurisdiction culminating in the Court of Appeal of the province. These Courts of Appeal are then subject to the Supreme Court of Canada in terms of appeal of their decisions. All but one of the provinces of
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
use a common law system for civil matters (the exception being
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirte ...
, which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts).


Canadian federal legal system

Canadian Federal Courts operate under a separate system throughout Canada and deal with narrower range of subject matter than superior courts in each province and territory. They only hear cases on subjects assigned to them by federal statutes, such as immigration, intellectual property, judicial review of federal government decisions, and admiralty. The
Federal Court of Appeal The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...
is the appellate court for federal courts and hears cases in multiple cities; unlike the United States, the Canadian Federal Court of Appeal is not divided into appellate circuits. Canadian federal statutes must use the terminology of both the common law and civil law for civil matters; this is referred to as legislative bijuralism.


Canadian criminal law

Criminal law is uniform throughout Canada. It is based on the federal statutory Criminal Code, which in addition to substance also details procedural law. The administration of justice are the responsibilities of the provinces. Canadian criminal law uses a common law system no matter which province a case proceeds.


Nicaragua

Nicaragua Nicaragua (; ), officially the Republic of Nicaragua (), is the largest country in Central America, bordered by Honduras to the north, the Caribbean to the east, Costa Rica to the south, and the Pacific Ocean to the west. Managua is the coun ...
's legal system is also a mixture of the English Common Law and Civil Law. This situation was brought through the influence of British administration of the Eastern half of the Mosquito Coast from the mid-17th century until about 1894, the William Walker period from about 1855 through 1857, US interventions/occupations during the period from 1909 to 1933, the influence of US institutions during the
Somoza family The Somoza family ( es, Familia Somoza) is a former political family that ruled Nicaragua for forty-three years from 1936 to 1979. Their family dictatorship was founded by Anastasio Somoza García and was continued by his two sons Luis Somoza ...
administrations (1933 through 1979) and the considerable importation between 1979 and the present of US culture and institutions.


Israel (1948)

Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
has a common law legal system. Its basic principles are inherited from the law of the
British Mandate of Palestine British Mandate of Palestine or Palestine Mandate most often refers to: * Mandate for Palestine: a League of Nations mandate under which the British controlled an area which included Mandatory Palestine and the Emirate of Transjordan. * Mandatory P ...
and thus resemble those of British and American law, namely: the role of courts in creating the body of law and the authority of the
supreme court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
in reviewing and if necessary overturning legislative and executive decisions, as well as employing the adversarial system. One of the primary reasons that the Israeli constitution remains unwritten is the fear by whatever party holds power that creating a written constitution, combined with the common-law elements, would severely limit the powers of the
Knesset The Knesset ( he, הַכְּנֶסֶת ; "gathering" or "assembly") is the unicameral legislature of Israel. As the supreme state body, the Knesset is sovereign and thus has complete control of the entirety of the Israeli government (wit ...
(which, following the doctrine of
parliamentary sovereignty Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over ...
, holds near-unlimited power).


Roman Dutch common law

Roman Dutch common law is a bijuridical or mixed system of law similar to the common law system in
Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to ...
and
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is bord ...
. Roman Dutch common law jurisdictions include
South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...
,
Botswana Botswana (, ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label= Setswana, ), is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory being the Kal ...
,
Lesotho Lesotho ( ), officially the Kingdom of Lesotho, is a country landlocked as an enclave in South Africa. It is situated in the Maloti Mountains and contains the highest mountains in Southern Africa. It has an area of over and has a population ...
,
Namibia Namibia (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean. It shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and ea ...
,
Swaziland Eswatini ( ; ss, eSwatini ), officially the Kingdom of Eswatini and formerly named Swaziland ( ; officially renamed in 2018), is a landlocked country in Southern Africa. It is bordered by Mozambique to its northeast and South Africa to its n ...
,
Sri Lanka Sri Lanka (, ; si, ශ්‍රී ලංකා, Śrī Laṅkā, translit-std=ISO (); ta, இலங்கை, Ilaṅkai, translit-std=ISO ()), formerly known as Ceylon and officially the Democratic Socialist Republic of Sri Lanka, is an ...
and
Zimbabwe Zimbabwe (), officially the Republic of Zimbabwe, is a landlocked country located in Southeast Africa, between the Zambezi and Limpopo Rivers, bordered by South Africa to the south, Botswana to the south-west, Zambia to the north, and ...
. Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights. Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions. During the Napoleonic wars the Kingdom of the Netherlands adopted the French ''code civil'' in 1809, however the Dutch colonies in the Cape of Good Hope and Sri Lanka, at the time called Ceylon, were seized by the British to prevent them being used as bases by the French Navy. The system was developed by the courts and spread with the expansion of British colonies in Southern Africa. Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and also on the writing of Dutch jurists of the 17th century such as
Grotius Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright. A teenage intellectual prodigy, he was born in Delft ...
and Voet. In practice, the majority of decisions rely on recent precedent.


Ghana

Ghana follows the English common-law tradition which was inherited from the British during her colonisation. Consequently, the laws of Ghana are, for the most part, a modified version of imported law that is continuously adapting to changing socio-economic and political realities of the country. The Bond of 1844 marked the period when the people of Ghana (then Gold Coast) ceded their independence to the British and gave the British judicial authority. Later, the Supreme Court Ordinance of 1876 formally introduced British law, be it the common law or statutory law, in the Gold Coast. Section 14 of the Ordinance formalised the application of the common-law tradition in the country. Ghana, after independence, did not do away with the common law system inherited from the British, and today it has been enshrined in the 1992 Constitution of the country. Chapter four of Ghana's Constitution, entitled "The Laws of Ghana", has in Article 11(1) the list of laws applicable in the state. This comprises (a) the Constitution; (b) enactments made by or under the authority of the Parliament established by the Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution; (d) the existing law; and (e) the common law.According to Article 11(2) of Ghana's Constitution, the common law of Ghana shall comprise the rule of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law, including those determined by the Superior Court of Judicature. Thus, the modern-day Constitution of Ghana, like those before it, embraced the English common law by entrenching it in its provisions. The doctrine of judicial precedence which is based on the principle of ''stare decisis'' as applied in England and other pure common law countries also applies in Ghana.


Scholarly works

Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...
, a 17th-century Lord Chief Justice of the English Court of Common Pleas and a
Member of Parliament A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members o ...
(MP), wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his ''
Institutes An institute is an organisational body created for a certain purpose. They are often research organisations ( research institutes) created to do research on specific topics, or can also be a professional body. In some countries, institutes ca ...
'' and ''Reports'' until the end of the 18th century. His works are still cited by common law courts around the world. The next definitive historical treatise on the common law is ''
Commentaries on the Laws of England The ''Commentaries on the Laws of England'' are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1770. The work is divided into four volum ...
'', written by Sir
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family ...
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 ''Halsbury's Laws of England'' is a uniquely comprehensive encyclopaedia of law, and provides the only complete narrative statement of law in England and Wales. It has an alphabetised title scheme covering all areas of law, drawing on authoriti ...
that covers both common and statutory English law. While he was still on the
Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the highest court in the Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the distinction of being the oldest continuously func ...
, 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. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law ''is''; rather, Holmes describes the common law ''process''. Law professor John Chipman Gray's ''The Nature and Sources of the Law'', an examination and survey of the common law, is also still commonly read in U.S. law schools. In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, and so on.), edited by the
American Law Institute The American Law Institute (ALI) is a research and advocacy group of judges, lawyers, and legal scholars established in 1923 to promote the clarification and simplification of United States common law and its adaptation to changing social needs ...
, 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. 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. Examples include Craig, ''Jus Feudale'' (1655) and Stair, ''The Institutions of the Law of Scotland'' (1681).


See also

*
Outline of law :'' The following outline is provided as an overview of and topical guide to law:'' Law ('' article link'') is the set of rules and principles (laws) by which a society is governed, through enforcement by governmental authorities. Law is also t ...


Common law national legal systems today

* List of common law national legal systems


Common vs. civil laws

* Civil law *
Common law offences Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. State laws. They are offences under the common law, developed entirely by the law courts, having no specific ...


Development of English legal system and case law

*
Books of authority Books of authority is a term used by legal writers to refer to a number of early legal textbooks that are excepted from the rule that textbooks (and all books other than statute or law report) are not treated as authorities by the courts of England ...
* Lists of case law


Early common law systems

*
Anglo-Saxon law Anglo-Saxon law (Old English ''ǣ'', later ''lagu'' "law"; dōm "decree, judgment") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early ...
* Brehon law, or Irish law * Doom book, or Code of
Alfred the Great Alfred the Great (alt. Ælfred 848/849 – 26 October 899) was King of the West Saxons from 871 to 886, and King of the Anglo-Saxons from 886 until his death in 899. He was the youngest son of King Æthelwulf and his first wife Osburh, who bo ...
*
Time immemorial Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...


Stages of common law trials

*
Arraignment Arraignment is a formal reading of a criminal charging document in the presence of the defendant, to inform them of the charges against them. In response to arraignment, the accused is expected to enter a plea. Acceptable pleas vary among jurisd ...
*
Grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a p ...
*
Jury trial A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions. Jury trials are used in a signific ...


Common law in specific areas


Common law as applied to matrimony

*
Alimony Alimony, also called aliment (Scotland), maintenance (England, Ireland, Northern Ireland, Wales, Canada, New Zealand), spousal support (U.S., Canada) and spouse maintenance (Australia), is a legal obligation on a person to provide financial sup ...
*
Common-law marriage Common-law marriage, also known as non-ceremonial marriage, marriage, informal marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civi ...


Employment

* Faithless servant


Slavery

*
Slavery at common law Slavery at common law in the British Empire developed slowly over centuries, and was characterised by inconsistent decisions and varying rationales for the treatment of slavery, the slave trade, and the rights of slaves and slave owners. Unli ...


References


Further reading

* Chapters 1–6. * Crane, Elaine Forman (2011), ''Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America.'' Ithaca, NY: Cornell University Press. * * * * * * * Milsom, S.F.C., ''A Natural History of the Common Law''. Columbia University Press (2003) * Milsom, S.F.C., ''Historical Foundations of the Common Law'' (2nd ed.). Lexis Law Publishing (Va), (1981) * * * *


External links


''The History of the Common Law of England, and An analysis of the civil part of the law''
Matthew Hale
''The History of English Law before the Time of Edward I'', Pollock and Maitland
* Selec
Writs. (F.W.Maitland)

''Common-law Pleading: its history and principles'', R.Ross Perry, (Boston, 1897)
* ; also available a


''The Principle of stare decisis''
American Law Register The ''University of Pennsylvania Law Review'' is a law review published by an organization of second and third year J.D. students at the University of Pennsylvania Law School. It is the oldest law journal in the United States, having been publish ...

The Australian Institute of Comparative Legal Systems

The International Institute for Law and Strategic Studies (IILSS)

''New South Wales Legislation''

Historical Laws of Hong Kong Online
– University of Hong Kong Libraries, Digital Initiatives
Maxims of Common Law
from Bouvier's 1856 Law Dictionary {{Authority control Legal history Legal systems