What is Common Law?

Katarina Nikolić

INTRODUCTION

Common law, a legal system rooted in judicial precedent rather than comprehensive legislative codes, has profoundly shaped the legal landscapes of numerous countries, most notably the United States, the United Kingdom, and many nations within the Commonwealth.[1] From its origin to today’s day and age, common law has evolved into one of the world’s most influential legal systems. Originating in medieval England following the Norman Conquest of 1066, common law emerged from the need for a unified system of justice across the realm. Its defining characteristic—reliance on case law and the principle of stare decisis—[2]makes it a uniquely adaptable and evolving system. This essay will explore the historical origins, core characteristics, dynamic relationship with statutory law, and enduring relevance of common law in the modern legal world.

HISTORICAL ORIGIN OF COMMON LAW

The historical origins of common law are rooted in the efforts to centralize and unify the legal system of medieval England, particularly following the Norman Conquest of 1066. [3]This period witnessed the gradual shift from localized customs and legal practices to a system of law common to the entire realm, hence the name “common law.” This evolution was a complex process, involving the establishment of royal courts, the development of procedural remedies through writs, the emergence of equity to address the rigidity of common law, and the eventual triumph of common law over other competing legal systems.

Before the Norman Conquest, England was characterized by a patchwork of local customs and laws administered by various local courts. William the Conqueror’s desire to consolidate royal power and establish a unified kingdom led to the creation of new institutions of royal authority and justice. A key development was the establishment of the Curia Regis(King’s Court) at Westminster,[4] near London. This central royal court served as the foundation for the development of common law. To extend royal justice throughout the kingdom, the King’s Court sent out itinerant judges on “circuits” or “assizes.” These judges traveled to different regions, hearing cases and applying a consistent set of principles, gradually creating a body of law common to all of England.

Initially, early common law, like many other early legal systems, heavily emphasized procedural remedies rather than substantive rights. The system revolved around writs, formal written orders issued by the Crown, each providing a specific remedy for a specific type of wrong. A plaintiff could only bring a case before the royal courts if they could obtain the appropriate writ. This system of writs became increasingly formalized and rigid over time. The limited number of available writs often proved inadequate to address the diverse range of disputes that arose. If a situation did not precisely fit within the scope of an existing writ, no remedy was available at common law.

This inflexibility of the writ system created a significant problem. In cases where the common law courts could not provide a just outcome due to the limitations of the writs, individuals began petitioning the King directly for redress. These petitions were often referred to the King’s Chancellor, an official who acted as the King’s chief advisor and keeper of his conscience. The Chancellor, guided by principles of fairness, equity, and good conscience, began to develop a separate system of remedies. This led to the establishment of the Court of Chancery, also known as the Court of Equity.

[5]The Court of Chancery operated alongside the common law courts, offering remedies such as injunctions (court orders compelling or prohibiting certain actions), specific performance (requiring a party to fulfill a contract), and other forms of relief not available at common law. Equity drew upon various sources, including Roman law, natural law, and principles of fairness, to achieve just outcomes in cases where the common law was too rigid. This dual system of law and equity functioned separately for centuries, creating a complex legal landscape.

During the Middle Ages, common law in England coexisted with other legal systems. Ecclesiastical courts applied canon law (church law), local courts applied customary law, and maritime courts applied admiralty law, often based on Roman law principles. The 17th century marked a turning point, with Parliament asserting its supremacy over the King. This assertion of parliamentary power solidified the role of common law and placed it at the apex of the English legal system. Parliament claimed the right to define the common law and subordinate other forms of law to it.

This evolution of a distinct national legal culture in England coincided with the development of national legal systems in continental Europe, where legal humanists and Enlightenment scholars looked to share civil law traditions. However, English jurists of this era took pride in the uniqueness of English legal customs and institutions, particularly its reliance on judicial precedent.

This pride, coupled with perhaps a degree of envy inspired by the contemporary European movement toward codification of laws, led to the creation of the first comprehensive and systematic treatise on English common law: William Blackstone’s Commentaries on the Laws of England (1765-1769). [6]Blackstone’s work became enormously influential, providing a clear and organized exposition of common law principles. In American law, Blackstone’s Commentaries  became a definitive source for understanding common law precedents prior to the formation of the United States.

The abolition of the writ system in the mid-19th century marked a significant reform. This reform merged the common law courts and the courts of equity, streamlining the legal system. Although the formal separation of courts ended, the principles of equity continue to be applied in modern legal practice. Certain types of writs, such as habeas corpus(protecting against unlawful detention), remain vital parts of the modern legal system. The Magna Carta (1215),[7] contemporaneous with the development of habeas corpus, further solidified individual liberties, including the right to a jury trial.

The historical evolution of common law has resulted in a system where substantive rights have gradually taken precedence over procedural technicalities. While procedure remains important, the focus has shifted towards achieving just outcomes based on legal principles rather than strict adherence to procedural forms. Although until the late 19th century English common law was predominantly judge-made, the modern era sees a greater interplay between judicial decisions and legislative action, with statutes playing an increasingly important role in shaping the legal landscape.

 

KEY CHARACTERISTICS OF COMMON LAW

 

Common law, a legal system originating in medieval England, stands as a testament to the power of judicial precedent and its enduring influence on legal systems worldwide. Unlike civil law systems that primarily rely on codified statutes, common law derives its strength from the accumulation of case law, where judges interpret and apply legal principles to specific factual scenarios. This reliance on precedent, coupled with other distinctive features, shapes the core characteristics of common law, making it a dynamic and adaptable system.

At the heart of common law lies the doctrine of stare decisis,[8] a Latin phrase meaning “to stand by things decided.” This principle mandates that courts should follow precedents established by previous decisions in similar cases. The hierarchical structure of the court system reinforces this doctrine, with lower courts bound by the decisions of higher courts within the same jurisdiction. Stare decisis provides predictability and consistency within the legal system, ensuring that similar cases are treated alike. This promotes fairness and allows individuals and businesses to understand their legal rights and obligations, facilitating planning and fostering confidence in the legal framework. However, stare decisis is not an absolute rule. Judges possess the ability to distinguish cases based on their unique facts, creating exceptions to existing precedents or even overruling outdated or unjust decisions. This capacity for adaptation allows common law to evolve alongside societal changes, addressing novel situations and ensuring its continued relevance.

Another defining characteristic of common law is its adversarial nature.[9] Legal disputes are resolved through a contest between two opposing parties, each presenting their case before a neutral judge and, in some instances, a jury. The judge acts as an impartial arbiter, ensuring that the rules of procedure are followed and that both sides have a fair opportunity to present their arguments. The jury, when present, serves as the fact-finder, determining the truth based on the evidence presented. This adversarial process is designed to uncover the truth through vigorous debate and cross-examination, allowing the judge or jury to make an informed decision. This contrasts sharply with the inquisitorial system found in many civil law jurisdictions, where the judge plays a more active role in investigating the facts of the case.

The role of judges in common law systems is particularly significant. While they are bound by precedent, judges also play a crucial role in shaping the law through their interpretations and applications of existing principles. When faced with a novel legal question or a case with unique facts, judges must analyze existing precedents, consider relevant legal principles, and develop a reasoned judgment. This process of judicial interpretation creates new precedents, adding to the body of case law and contributing to the ongoing evolution of common law. This “judge-made law” [10]is a hallmark of the system, allowing it to adapt to changing social norms and technological advancements without requiring constant legislative intervention.

The emphasis on case law is another key characteristic of common law.[11] Legal principles are derived from the analysis of past cases, with each decision contributing to the overall body of legal knowledge. Lawyers and judges meticulously research and analyze past cases to identify relevant precedents and apply them to the case at hand. This reliance on case law creates a rich tapestry of legal reasoning, providing a wealth of guidance for future decisions. The detailed legal reasoning provided in common law judgments further enhances this clarity, articulating the court’s rationale and contributing to legal scholarship.

Finally, the importance of oral argument distinguishes common law practice.[12] Lawyers present their arguments orally before the court, engaging in a dynamic exchange with the judge. This allows for a deeper exploration of the legal issues, with judges posing questions and challenging the lawyers’ arguments. This process of oral advocacy plays a key role in refining legal arguments and shaping the court’s understanding of the case. It also contributes to the transparency and accountability of the legal process.

THE RELATIONSHIP BETWEEN COMMON LAW AND STATUTORY LAW

The legal landscape in many jurisdictions, particularly those rooted in the English common law tradition, is shaped by the dynamic interplay between two primary sources of law: common law and statutory law. Understanding the distinct nature of each and their complex relationship is crucial for comprehending how legal systems function, how laws are created, interpreted, and applied, and how the law adapts to societal changes.

Common law, as discussed previously, is judge-made law. It emerges from judicial decisions in individual cases, creating a body of precedent that guides future rulings. This “case law” is reactive, developing in response to specific disputes brought before the courts. The principle of stare decisis (“to stand by things decided”) mandates that courts follow precedents established by higher courts within the same jurisdiction, ensuring consistency and predictability. However, common law is not static. Judges can distinguish cases with unique facts, creating exceptions to existing precedents or even overruling outdated decisions, allowing the common law to evolve over time.

In contrast, statutory law is created proactively by legislative bodies, such as Congress at the federal level and state legislatures at the state level. These legislative enactments, often referred to as statutes, acts, or codes, are written rules that establish general principles and specific regulations governing various aspects of society. Unlike common law, which develops incrementally through individual cases, statutory law is created through a deliberate and formal legislative process. This process typically involves drafting, debate, amendment, and ultimately, enactment by the legislature. Statutes are then codified, meaning they are organized into subject-matter arrangements in codes, creating a more accessible and organized body of written law.

The relationship between common law and statutory law is one of constant interaction and mutual influence. While they are distinct sources of law, they are not mutually exclusive; they coexist and often complement each other.  Statutes can modify or even overrule common law. A legislature can pass a statute that changes or even overrules a common law principle. This demonstrates the supremacy of statutory law over common law. For example, a state legislature might enact a statute that modifies the common law rules regarding landlord-tenant relationships. Courts can interpret statutes. When interpreting and applying statutes, courts create case law that further defines the statute’s meaning and scope. This judicial interpretation becomes part of the common law, influencing how the statute is applied in future cases. This process is crucial because statutes are often written in general terms, leaving room for interpretation in specific factual contexts. The common law, through judicial interpretation, provides the practical application of the broader legislative intent. Common law can fill in the gaps in statutes. Statutes cannot anticipate every possible situation. When a statute is silent on a particular issue, courts may rely on common law principles to fill the gap. This ensures that legal disputes can be resolved even when there is no specific statutory provision directly on point.

Statutes can codify common law. Sometimes, legislatures codify existing common law principles into statutes. This provides greater certainty and accessibility to the law, making it easier for individuals and businesses to understand their legal rights and obligations.[13]

The distinction between the reactive nature of common law evolution and the proactive establishment of statutory law is essential for legal analysis. Common law evolves incrementally, adapting to specific factual scenarios and changing societal norms. Statutory law, on the other hand, allows for broader and more sweeping changes to the law, addressing systemic issues and implementing policy objectives.

In the United States[14],this interplay is particularly important due to the federal system. Federal statutes enacted by Congress apply nationwide, while state statutes apply within their respective states. This creates a complex web of interactions between federal and state statutory law, as well as their respective interactions with common law.

The relationship between common law and statutory law is a dynamic and essential aspect of many legal systems. They are not competing systems but rather complementary sources of law that interact and influence each other. Understanding this interplay is crucial for lawyers, judges, and anyone seeking to understand how the law functions in practice. This complex interplay between common law and statutory law is particularly evident in the United States, where common law traditions have a long and influential history.

 

COMMON LAW IN THE UNITED STATES OF AMERICA

The American legal system, while deeply rooted in the English common law tradition, has evolved into a distinct system with its own unique characteristics. Although the common law serves as one of its core pillars, it is interwoven with other significant sources of law, including the U.S. Constitution, federal and state statutes, administrative regulations, treaties, and scholarly legal works like the Restatements of the Law. This complex interplay has led to significant divergence between the legal systems of the United States and England, so much so that they are sometimes described as “two countries separated by a common language”—or, more accurately, “two countries separated by a common law.”[15]

The reception of English common law in the American colonies occurred gradually, varying from colony to colony. Initially, colonists relied on a mix of English law, local customs, and even biblical law. However, as trade and communication with England increased, English common law became increasingly influential. After the American Revolution, the newly independent states formally adopted English common law to varying degrees, often through “reception statutes” that specified a date after which English decisions would no longer be binding precedent.

Despite this shared heritage, several key factors have contributed to the divergence of American and English common law. Perhaps the most significant difference lies in the existence of a written constitution in the United States and the establishment of judicial review. The landmark case of Marbury v. Madison (1803)[16] solidified the Supreme Court’s power to declare laws unconstitutional, a power not possessed by English courts to the same extent. This power of judicial review has profoundly shaped American law, leading to the “constitutionalization” of many areas of law, as courts interpret and apply constitutional principles to a wide range of legal issues. England, lacking a written constitution, operates under the principle of parliamentary sovereignty, where acts of Parliament are supreme. The United States operates under a federal system, with power divided between the federal government and state governments. This division of power has led to the development of distinct bodies of federal and state common law, further contributing to the divergence from English law. Each state has its own court system and develops its own body of common law within its jurisdiction, leading to variations in legal principles across state lines.The U.S. presidential system, with its separation of powers between the executive, legislative, and judicial branches, differs significantly from the British parliamentary system. This difference in governmental structure has influenced the development of legal institutions and processes in each country.Over time, the United States and England have developed distinct social and cultural contexts, which have inevitably influenced the development of their respective legal systems. Different social values, economic conditions, and historical experiences have led to different interpretations and applications of common law principles.

Despite these significant divergences, the “family resemblance” between common law systems, particularly in the realm of private law (e.g., contracts, torts, property), remains strong. Fundamental common law concepts such as negligence, contract formation, and property rights continue to be shared, albeit with variations in their specific application. For example, while both US and UK law recognize the tort of negligence, specific elements of the tort or defenses available might differ.

The influence of American legal scholarship and case law has also begun to exert a reciprocal influence on other common law jurisdictions, including England. This cross-fertilization of legal ideas demonstrates the ongoing evolution and interconnectedness of common law systems globally.

While the American legal system originated from English common law, it has evolved into a distinct system shaped by its unique constitutional framework, federal structure, and socio-cultural context. The establishment of judicial review, the division of power between federal and state governments, and the differing political systems have all contributed to significant divergence. Nonetheless, the shared heritage of common law continues to exert an influence, particularly in private law, demonstrating the enduring legacy of this influential legal tradition.

COMMON LAW V CIVIL LAW

The world’s legal systems are broadly categorized into two primary traditions: common law and civil law. While many modern systems incorporate elements of both, understanding their fundamental differences is crucial for comprehending legal processes and outcomes across various jurisdictions.

Common law as discussed previously, originated in medieval England following the Norman Conquest of 1066. It developed through judicial decisions, creating a body of precedent that became “common” to the entire realm. While civil law’s roots lie in Roman law, particularly the Corpus Juris Civilis compiled under Emperor Justinian in the 6th century AD[17]. This codified body of law was rediscovered in Europe during the Middle Ages and formed the basis for legal systems across continental Europe.

The most fundamental difference is the emphasis on codification. Civil law systems prioritize comprehensive legal codes that aim to cover all areas of law. These codes are enacted by legislatures and provide a systematic framework for legal analysis. In contrast, common law relies primarily on case law, with statutes playing a supplementary role. In common law, judges are not merely appliers of the law; they are also law-makers through their interpretation of statutes and the creation of precedent. In civil law, judges are expected to apply the law as written in the codes, with less room for judicial interpretation or the creation of new legal principles. [18]This does not mean that judges in civil law systems have no discretion; they still interpret the codes, but their role is generally more constrained than in common law systems. Common law uses inductive reasoning, drawing general principles from specific cases. Civil law uses deductive reasoning, applying general principles from codes to specific cases. While both systems have hierarchical court structures, civil law systems often have specialized courts for different branches of law (e.g., administrative courts, constitutional courts). This specialization is less common in common law systems. Common law generally allows for greater freedom of contract, with parties free to agree to most terms unless prohibited by statute or public policy. Civil law systems often have more mandatory provisions implied into contracts, limiting the parties’ ability to contract out of certain legal requirements. This difference can be particularly relevant in areas like public-private partnerships (PPPs), where civil law systems often have specific administrative law rules governing these arrangements.

These differences have significant implications for legal practice. In common law systems, lawyers spend considerable time researching case law to find relevant precedents. In civil law systems, lawyers focus more on interpreting and applying the relevant codes. The role of legal scholarship also differs, with legal scholars having a greater influence in civil law systems.

While these distinctions are important, it’s crucial to recognize that many modern legal systems are hybrid systems, incorporating elements of both common law and civil law. For example, some civil law jurisdictions have adopted elements of judicial review, while some common law jurisdictions have enacted comprehensive statutes in certain areas of law.

 

COMMON LAW IN PRACTICE

Donoughue v Stevenson (1932)[19] is a foundational case in modern negligence law. The case established the general principle that a person owes a duty of care to those who might be foreseeably affected by their actions. This was a groundbreaking expansion of negligence beyond contractual relationships. In this case Lord Atking famously defined a “neighbor” as “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”. In simpler terms, if it’s reasonably foreseeable that your actions could harm someone, you owe them a duty of care. Donoghue v Stevenson specifically addressed the liability of manufacture to the ultimate consumers of their products. Prior to this case, it was difficult to hold manufacturers liable for negligence if there was no direct contract between them and the consumer. The ruling established that manufacturers could be liable for injuries caused by defects in their products, even if the consumer had purchased the product through a third party. Donoghue v Stevenson significantly contributed to the modern understanding of the tort of negligence and the establishments of the duty of care, breach of a duty, and damage or injury. In essence, Donoghue v Stevenson revolutionized negligence law by establishing that a duty of care could exist outside of contractual relationships, creating a broader scope for holding individuals and businesses accountable for their actions that cause harm to others.

Carlill v Carbolic Smoke Ball Co (1893)[20] is a core case that helped in the development of the contract law. This case deals with the formation of contracts, particularly in the context of advertisement. It established that an advertisement can constitute a unilateral offer, which is accepted by performing the conditions outlined in the advertisement. This case clarified the rules of offer and acceptance in contract law, particularly in the context of advertisement. It established that advertisements can create legally binding obligations if they are clear, definite, and demonstrate an intention to be bound.

R v Dudley and Stephens (1884)[21] this case addressed the defense of necessity in a murder trial. It established that necessity is generally not a defense to murder, even in extreme circumstances of survival. The case underscored the common law’s commitment to protect human life and uphold the rule of law.

Entick v Carrington (1765)[22] in this case the court held that the government’s actions were unlawful. The court established the principle that government power is limited and must be based on law. It affirmed the right of individuals to be free from unreasonable searches and seizures. This case is a landmark decision in the development of civil liberties and the protection of individual rights against government intrusion. It is a cornerstone of constitutional law in common law jurisdictions.

Marbury v Madison (1803) (US Case) [23]in this case the Supreme Court held that while Marbury had a right to his appointment, the Court did not have the power to issue a writ of mandamus (a court order compelling a government official to act). In doing so, the Court established the principle of judicial review, which allows the Court to declare laws unconstitutional. This case is a cornerstone of American constitutional law and the system of check and balance. It established the judiciary as a co-equal branch of government with the power to interpret the Constitution and invalidate laws that conflict with it.

ADVANTAGES AND CRITICISM OF COMMON LAW

 

One of the most significant strengths of common law lies in its inherent flexibility. The doctrine of stare decisis, meaning “to stand by things decided,” dictates that courts should follow precedents established by previous decisions in similar cases. However, this doctrine is not rigid. Judges possess the ability to distinguish cases based on their unique facts, creating new precedents that adapt the law to evolving social norms and technological advancements. This adaptability allows common law to remain relevant without requiring constant legislative intervention, enabling it to address novel situations that legislators may not have foreseen. This is exemplified by the landmark case of Donoghue v Stevenson (1932), which established the modern concept of negligence and the “neighbour principle,” extending liability beyond contractual relationships to encompass foreseeable harm. This case demonstrated the common law’s ability to respond to the changing industrial landscape and the rise of mass-produced goods.

Furthermore, the emphasis on precedent in common law fosters consistency and predictability within the legal system. By adhering to established principles, courts ensure that similar cases are treated similarly, promoting fairness and stability.This predictability allows individuals and businesses to understand their legal rights and obligations, facilitating planning and promoting confidence in the legal system. The detailed legal reasoning provided in common law judgments further enhances this clarity. These reasoned opinions articulate the court’s rationale, providing guidance for future decisions and contributing to a rich body of legal scholarship.

However, the very nature of common law, with its reliance on a vast body of case law, also presents certain challenges. The sheer volume of precedents can make it difficult to identify and interpret the relevant legal principles, leading to uncertainty and increased legal costs. This complexity can make the law inaccessible to non-lawyers, creating a barrier to justice for those who lack the resources to navigate the intricacies of case law. Moreover, while stare decisis promotes consistency, it can also lead to rigidity. Overruling precedent is a significant step, and courts are often hesitant to depart from established principles, even when those principles may have become outdated or unjust. This can make common law slow to respond to rapid societal changes, potentially creating a lag between legal principles and contemporary needs.

Another point of contention lies in the role of judges in shaping the law. Critics argue that judges sometimes overstep their role by effectively creating new law rather than simply applying existing principles. This perceived “judicial lawmaking” raises concerns about the separation of powers and the legitimacy of unelected judges making policy decisions. While judges undoubtedly play a crucial role in interpreting and applying the law, the line between interpretation and lawmaking can be blurry, leading to ongoing debate about the proper scope of judicial authority.

 

CONCLUSION

In conclusion, common law stands as a testament to the enduring power of judicial precedent. The common law system is not a static body of rules but rather a dynamic and evolving process.  From its origins in medieval England to its global influence today, the system’s reliance on stare decisis, the adversarial process, and the crucial role of judges has shaped legal landscapes across the world. While its inherent flexibility allows it to adapt to evolving societal needs, the complexity of case law and the potential for judicial overreach remain ongoing points of discussion. Nonetheless, common law’s capacity for evolution and its rich history of legal reasoning ensure its continued relevance in the modern legal world.

AUTHOR: KATARINA NIKOLIĆ

 

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[1] (Thomson Reuters, 2022)

[2] (Congress.gov, 2014)

[3] (Augustyn, 2019)

[4] (Petruzzello, n.d.)

[5] (Belzer, 2016)

[6](Blackstone, 1765)

[7] (UK Parliament, 2023)

[8] (Congress.gov, 2014)

[9] (fromiti, 2020)

[10] (www.lsd.law, 2024)

[11] (Fennelly, 2014)

[12] (Newman and Ahmuty Jr., 2022)

[13] (Coyle, 2023)

[14](Poli, 2023)

[15] This phrase is an adaptation of the well-known quote, often attributed to George Bernanrd Shaw, ‘England and America are two countries separated by a common language”

[16](Justia, 2006)

[17] (Hazard and Jolowicz, 2019)

[18] (Berkeley Law, 2019)

[19]  (LawTeacher. November 2013. Donoghue v Stevenson )

[20] (LawTeacher. November 2013. Carlill v Carbolic Smoke Ball Co – 1893.)

[21] (LawTeacher. November 2013. R v Dudley and Stephens – 1884.)

[22] (LawTeacher. November 2013. Entick v Carrington 1765.)

[23] (Urofsky, 2018)

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