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What is Common Law

September 13, 2017

Definition by Black’s Law Dictionary

By Henry Campbell Black, M. A., Revised Fourth Edition, West Publishing Co., 1968

* The Law Dictionary –
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* Common Law – Encyclopaedia Britannica Online
Common Law – Legal Dictionary
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* The Common Law and Civil Law Traditions  

As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is that body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Anglo-Saxon stock. Lux v. Haggin, 69 Cal. 255, 10 P. 674. As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, 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. 1 Kent, Comm. 492. Western Union Tel. Co. v. Call Pub. Co., 21 S.Ct. 561, 181 U.S. 92, 45 L.Ed. 765; Barry v. Port Jervis, 72 N.Y.S. 104, 64 App. Div. 268; U. S. v. Miller, D.C.Wash., 236 F. 798, 800.

As distinguished from equity law, it is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished from any claim to ethical superiority. Klever v. Seawall, C.C.A.Ohio, 65 F. 395, 12 C.C.A. 661. As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals. As concerns its force and authority in the United States, the phrase designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. Industrial Acceptance Corporation v. Webb, Mo.App., 287 S.W. 657, 660.

The “common law” of England, which is the rule of decision in all courts of Montana, in so far as it is not repugnant to the Constitution of the United States or the Constitution or laws of that state, means that body of jurisprudence as applied and modified by the courts of this country up to the time it was adopted in Montana. Herrin v. Sutherland, 74 Mont. 587, 241 P. 328, 330, 42 A.L.R. 937. See, also, Norvell-Wilder Hardware Co. v. McCamey, Tex. Civ.App., 290 S.W. 772, 773; Fletcher v. Los Angeles Trust & Savings Bank, 182 Cal. 177, 187 P. 425, 427.

The common law of England, adopted by Pol. Code Cal. § 4468, does not refer solely to the lex non scripta, the common law unmodified by statute, but contemplates the whole body of jurisprudence as it stood, influenced by statute at the time when the Code section was adopted, and also embraces equity. Martin v. Superior Court of California in and for Alameda County, 176 Cal. 289, 168 P. 135, 136, L.R.A.1918B, 313.

In a wider sense than any of the foregoing, the “common law” may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs. For “Federal Common Law,” see that title. As a compound adjective “common-law” is understood as contrasted with or opposed to “statutory,” and sometimes also to “equitable” or to “criminal.” See examples below.

The origin of the Common Law

By Common Law – Encyclopaedia Britannica Online

The English common law originated in the early Middle Ages in the King’s Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Like many other early legal systems, it did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.

The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great (871), had developed a body of rules resembling those being used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.

The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, many of whom had joined the conquest with this reward in mind. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeiture of property. The requirement that, in cases of sudden death, the local community should identify the body as English (“presentment of Englishry”) – and, therefore, of little account – or face heavy fines reveals a state of unrest between the Norman conquerors and their English subjects. Government was centralized, a bureaucracy built up, and written records maintained. Controversy exists regarding the extent to which the efficient government of the Anglo-Norman realm was due to the legacy of Anglo-Saxon institutions or to the ruthlessness of the Norman invaders. Elements of the Anglo-Saxon system that survived were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court; see below The development of a centralized judiciary). Important consolidation occurred during the reign of Henry II (1154–89). Royal officials roamed the country, inquiring about the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome.

The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.

3 Common Law facts you must know

Common Law is a type of legal methodology undertaken by a specific jurisdiction; the adoption of a statutory legal structure mandated by the precepts expressed within Common Law are considered to differ from those jurisdictions undertaking a legal methodology rooted in Civil Law.

Common Law is deeply rooted in Roman Law, which a multitude of historians credit as providing the earliest incarnations of legal statues and stipulations; not only were a variety of Roman Laws absorbed by the tenets of Common Law, but many facets of Roman Law are considered to be both legally – and structurally – sound despite its development dating back to 439 BCE. Therefore, when someone asks what common law is, it must be understood that the concepts latent in this legal methodology date back to the earliest of times, in regards to the scope of law.

How does Common Law differ from other legal methodologies?

Common law (also referred to as case law or precedent) is developed by judges through the decisions rendered in a legal forum, such as a court room or tribunal. This creation process differentiates from other legal methodologies, which predominantly create their interpretative process through legislative statutes or a decision rendered by the underlying executive branch.

A common law legal system is a legal methodology that places a significant weight on precedent and on the principle that it is unfair to treat similar legal matters differently on different occasions.

In a common law setting, if the parties disagree on what the underlying law is, an idealized common law court will evaluate past precedential decisions of relevant court systems. If a similar dispute has been resolved in a previous court case, a common law system will evaluate the precedential decisions and apply it to the underlying legal issue at hand.

Basic Principles of Common Law:

In a generic common law jurisdiction several stages of analysis and research are required to determine what the underlying law is in a given situation. The court or presiding judge must ascertain the facts, then, locate any relevant laws, statutes and cases that may apply to the underlying legal issue. Following the retrieval of coordinating statutes and cases, the judge must then extract the principles and statements issued by various courts. The retrieval of this information is used to determine how the common law court is likely to rule on the facts of the case at hand.

In a common law system, later decisions and those decisions offered by a higher court will carry more weight than judgments delivered by lower courts or that took place in earlier cases. After this process has been satisfied, the judge or presiding authority, must integrate the reasons given to determine what the law is. When this is accomplished, the underlying law or legal issue will be applied to the facts offered in the particular case.

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