Common Law Explenation

 

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 in 1066.^[10] 
The British Empire later spread the English legal system to its far flung 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 legal system.^{[11][12][13][14]}

In law, common law (also known as judicial precedent or 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.^{[1][2][3][4][5][6]} The defining characteristic of “common law” is that it arises as precedent. 
In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts.
 If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called 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 (one party or the other has to win, and on disagreements of law, judges make that decision).^[7] 

The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges,^[3][8] stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, 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.^[9]

 

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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.

The English Court of Common Pleas 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."^[38]
 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 "assizes". 
The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit.^[38] 
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.^[38]

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, and before there was any consistent law to be applied.^[35][36]

"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.^[37]

The English Court of Common Pleas dealt with lawsuits in which the Monarch had no interest, i.e., between commoners.

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The first definition of "common law" given in Black's Law Dictionary, 10th edition, 2014, is "The body of law derived from judicial decisions, rather than from statutes or constitutions; [synonym] CASELAW, [contrast] STATUTORY LAW".^[2] 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.^{[1][4][5][20]} In this connotation, "common law" distinguishes the authority that promulgated a law. For example, the law in most Anglo-American jurisdictions includes "statutory law" enacted by a legislature, "regulatory law" (in the U.S.) or “delegated legislation” (in the U.K.) promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or "case law", i.e., decisions issued by courts (or quasi-judicial tribunals within agencies).^[21] 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 and procedural law before the 20th century, and even today, most contract law^[22] and the law of torts.^[23][24]

(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, of legislative statutes, and of agency regulations, and the application of law to specific facts.^[1]

Publication of decisions, and indexing, is essential to the development of common law, and thus governments and private publishers publish law reports.^[25] While all decisions in common law jurisdictions are precedent (at varying levels and scope as discussed throughout the article on precedent), some become "leading cases" or "landmark decisions" that are cited especially often.

Common law legal systems as opposed to civil law legal systems [edit]

Black's Law Dictionary 10th Ed., definition 2, differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.^[11][12] 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.^[26]

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.^{[citation needed]} For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.^[27] 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.

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 of Roman law.^[28][29]

Law as opposed to equity [edit]

Black's Law Dictionary 10th Ed., definition 4, differentiates "common law" (or just "law") from "equity".^[30][21][31] Before 1873, England 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) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts 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.^[32][33] 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—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 applies (a determination of a fact necessary to resolution of a "common law" claim)^[34] vs. whether the issue will be decided by a judge (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 connotation 1) principles of binding precedent.

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Today, one-third of the world's population lives in common law jurisdictions or in systems mixed with civil law, including^[16] Antigua and Barbuda, Australia,^[17][18] Bahamas, Bangladesh, Barbados,^[19] Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and 49 of its 50 states), and Zimbabwe. Some of these countries have variants on common law systems. In these countries, common law is considered synonymous with case law.

https://en.wikipedia.org/wiki/Common_law#Louisiana_(1700s)

Examples: 

Louisiana (1700s)[edit]

Under Louisiana's codified system, the Louisiana Civil Code, private law—that is, substantive law 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, transmitted through French law and Spanish law, 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. However, the two codes are similar in many respects due to common roots.

Louisiana's criminal law largely rests on English common law. Louisiana's administrative law is generally similar to the administrative law of the U.S. federal government and other U.S. states. Louisiana's procedural law 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.

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.^[130]

New York (17th century)[edit]

The original colony of New Netherland 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 had two distinct legal systems: on Manhattan Island and along the Hudson River, sophisticated courts modeled on those of the Netherlands 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.^[129] 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 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. The influence of Roman-Dutch law 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.

California (1850s)[edit]

The U.S. state of California 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 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., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

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 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 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 304 U.S. 64, 78 (1938), overruled earlier precedent,^[131] 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, 451 U.S. 630 (1981) (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 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, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); see also International News Service v. Associated Press, 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.^[132]

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, but instead promulgates most of its substantive rules through common law (connotation 1).

India, Pakistan, and Bangladesh (19th century and 1948)[edit]

The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj.

Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.^[133] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.^[134] Early in this period, which finally culminated in the creation of the Gupta Empire, 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.^[135] 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.^[136]

When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.^[137]
 After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India.^[138] It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India 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)[edit]

Post-partition, India retained its common law system.^[140] 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, 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 guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, 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 is in place, in which all religions have a common law regarding marriages, divorces and adoption.

Post-partition Pakistan (1948)[ 

Post-partition, Pakistan retained its common law system.^[141]

Post-partition Bangladesh (1968)[ 

Post-partition, Bangladesh retained its common law system.

Canada (1867)[ 

Canada has separate federal and provincial legal systems.^[142]

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 use a common law system for civil matters (the exception being Quebec, 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 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.^[143]

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.^[144]

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.