Common Law

Common Law in Europe

Definition of Common Law

That part of the law of England formulated, developed and administered by the old Common Law Courts, based on the common custom of the country, and originally unwritten. It is opposed to equity, the body of rules administered by the Court of Chancery; to statute law, the law laid down in Acts of Parliament; to special law, the law administered in special Courts, such as ecclesiastical law, and the law merchant; and to the civil law, the law of Rome. It is the commonsense of the community, crystallised and formulated by our forefathers. [1]

See also Common Law in the legal Dictionaries here.

History and Description of Common Law

Common law is rooted in centuries of English history. It emphasizes the centrality of the judge in the gradual development of law and the idea that law is found in the distillation and continual restatement of legal doctrine through the decision of the courts.

Most law is generated, however, from the state and federal legislatures and common law is subjugated to federal and state legislative enactments. That is, common law can be overruled by legislative law (e.g. state legislatures can declare fornication between unmarried couples as legal even though the state’s common law states that is illegal. Once the state passes the law, it vacates the history of the common law. However, a new common law tradition could be created around the enforcement of new legislative laws as they are enforced and brought to the attention of the court.

However, although state and federal legislatures have power over state and federal common law, the Supreme Court has the final say in interpreting the constitutionality of all state and federal legislative law and the constitutionality of state common law.

Additionally, every state has a constitution and the state courts can interpret state legislative law in relation to whether it is constitutional within the constraints of that particular state’s constitution. The hierarchy among the different forms of law therefore looks like-state common law-state legislatures-state constitution-federal constitution/Supreme Court.

Common law consists of the rules and other doctrine developed gradually by the judges of the English royal courts as the foundation of their decision, and added to over time by judges of those various jurisdictions recognizing the authority of this accumulating doctrine. Law of common jurisdiction applied by these courts.

It was during the period between the Norman Conquest of England and the settlement of the American colonies that many of the basic principles that eventually became part of the American system of justice were established.

English common law emerged as an integral part of the transformation of England from a loose collection of what were essentially tribal chiefdoms or proto-states to a centrally governed civilization.

Over a 400-year period, from the eighth to the eleventh centuries, this cultural system of settling disputes through local custom became increasingly formalized as the hierarchical organization of Feudalism began to slowly replace the collective and egalitarian organization of the early tribal peoples in England, Wars between various tribal groups brought growing political consolidation and increasing individual ownership or land by powerful lords. As the once collectively owned tribal lands came under the private ownership and control of feudal lords, the responsibility of an individual to his kinsmen was replaced by the responsibility of a person to his lord. Where the collective responsibility of kin-groups had once served as the basis of dispute settlement, it now became the responsibility and the prerogative or feudal lords to see that justice was done.

As a means of consolidating power, feudal lords began requiring that dispute– be submitted to a local “court” for settlement.

By the time of the Norman conquest- in 1066, England was organized into approximately eight large kingdoms, which were at best loosely knit collections of relatively independent feudal landholdings. The basic units of social and political organization were the counties and “hundred.” The hundreds were subdivisions of counties, somewhat obscure in their origin but often privately owned and independently governed, it is estimated that at the time of the Conquest approximately half of all the hundreds were owned either by individual lords or by abbeys. The large number of hundreds owned by the church indicates the economic and political power of the Catholic Church, a situation that would bring it into direct conflict with a growing secular government in later years.

The hundreds courts were essentially meetings of important hundred residents at which all manner of local problems were discussed, among them the resolution of local disputes.

The right to hold court and to profit from it was the essential hallmark of a feudal ruler. Early feudal rulers required that compensatory damages he paid not to the offended party but to the lord of the hundred. The right of a lord to collect the profits resulting from the administration or Justice eventually became an essential force in the development of common law after the conquest.

In addition to the hundreds courts, feudal justice was also administered in the county courts held by the overlords of counties. These overlords could command attendance at their courts by the lords of the hundreds and other representatives. These early county courts prefigured the later bicameral (two-house) legislatures of England house of commons and house of the lords and the U.S. Senate and House of Representatives. It also established the relationship between the lower and higher courts in the U.S. Because the overlords of the counties were more powerful than lords of hundreds, it was possible for county courts to review and even overrule decisions rendered by lords in hundred courts, much the same way as higher courts now can overrule the decisions of the lower courts.

By 1066, England was halfway between tribalism and feudalism, between rule by custom and rule by state law.

The Norman Conquest

By virtue of having conquered England, William the First was able to proclaim that all land and land-based rights, including those of keeping court, were now vested in the king. Through this redistribution of land and the consolidation of all rights and relationships associated with land tenure under the crown, local courts eventually came under the administration of Norman rule,

Court keeping rights were still granted concerning land tenure, However, all courts had to he conducted in accordance with the king’s interests, particularly his monetary interests. Thus, judicial decision-making was slowly being transformed into the function of an increasingly bureaucratic system of justice.

The king’s interest in assuring a proper flow of justice-profits into the royal treasury brought about the institution of the eyre. Developed in the twelfth century as a powerful force for centralizing control over local courts, the eyre provided the structural basis for the development of a common law for England. It consisted of four itinerant judges representing the king who would periodically examine the activities of the county and hundred courts.

One of the focuses of this king’s court was to enforce forfeiture laws. This concept stemmed from the feudal doctrine that a man’s right to hold property was based upon a relationship of good faith between that man and his lord. The term felony originally meant an offense “so fundamental as to break the relationship between them and to cause the holding to be forfeited to the lord.” It was the duty of the judges in Pyre to insure that the king received his portion of forfeited property resulting from any such offenses occurring in the various county and hundred jurisdictions. “Law and order on the national scale were first expressed in terms of revenue.”

It was the decisions made by the judges in eyre concerning the common pleas brought before them that produced the body of legal precedent that became known as common law, that is, the rules of dispute settlement common to all England. As the itinerant judges in eyre, settled common-plea cases they established precedents to be followed in similar cases. Because common law was built on a case-by-case basis the terms “common law” and “case law” are sometimes used synonymously.

The development of English common law was not merely the institutionalization of traditional English customs. The rules of law established by the king’s courts were often unprecedented. Thus, the common law of England was “the by-product of an administrative triumph: the way in which the government of England came to be centralized and specialized during the centuries after the conquest.”

By seeking to eliminate variations in settlements arising from differences in local custom, ‘-the establishment of common law gave rise to a concept of justice the emphasized the uniform application of standardized laws and procedures. This concept was embodied in the doctrine of stare decisis that emphasized the importance of legal precedents established in previously settled cases.

Common law was primarily oriented not toward protecting individuals from ordinary threats to person and property -but toward maintaining social peace by regulating the economic arrangements characteristic of feudal land tenure and consolidating royal power under this system.

English Law and the Emergence of Capital

By capturing a greater share of the wealth of England, the growing mercantile class also captured a greater influence over the law of England. A common law designed primarily to protect the rights of feudal land ownership was wholly inadequate to the needs of a class whose goal was the accumulation or profit through trade rather than the -the protection of hereditary lands. What was needed were laws that would protect capital and the rights to its accumulation, insure a steady flow of profitable trade goods, and control the problems posed by a growing class of mobile urbanized laborers and artisans, no longer bound to the land, whose livelihoods were dependent upon the vagaries of both national and international trade. By the middle of the fifteenth century the English nobility, and even the crown, was firmly in debt to the mercantile class, and laws that would meet the needs of the powerful mercantile class began to emerge. As capital became more central, it increasingly enjoyed state protection in the form of criminal laws designed to punish those who interfered with what had come to he acceptable -forms of capital accumulation.

In sum, during the 300 years preceding the establishment of English colonies in North America, three important innovations were introduced into English law and English legal thought. First, law became an important ally of those seeking to maximize profit through capitalist market relations by defining many acts that disrupted the predictability of market relations as crimes, that is, as harms against the state, rather than as civil violations of contracts between individuals. Second, criminal law came to he seen as an appropriate tool for insuring an adequate supply of cheap labor, first for the agrarian economy and later for the developing industrial-mercantile economy of early capitalist England. Third, and perhaps most importantly for contemporary criminal law, members of the laboring class who turned to theft, violence, idleness, or other forms of deviance as an adaptation to the brutal conditions of their lives were defined as criminals. In so doing the English State absolved the emerging capitalists who profited greatly from the brutal conditions of working class life of all responsibility for the consequences of these conditions.

Characterizations of common law

Common law’s unity has been attributed to the fact that law is grounded in and logically derived from a handful of general principles and that whole subject-areas such as contract or torts are distinguished by some common principles or elements which fix the boundaries of the subject. The expositions of these general principles and the techniques required to find and to apply them and the rules that they under-pin are largely what legal education and scholarship in the common law tradition are all about. The heart of common law is not in specific decisions or in rules distilled from them but in broad notions which are difficult to unify or systematize but which may indeed in some way he ‘he woven into the fabric of life.’

Judges interpret and apply the law but do not create it for the law has no individual authors. It is the product of the community grounded in history. Common law follows the doctrine of precedent – the doctrine that judges are hound to treat as binding on them the essential legal grounds of decisions adopted in similar cases previously determined in courts of higher or perhaps equal status. The judge must attach great weight to previous decisions, not only for practical and political reasons (maintaining sufficient certainty in legal doctrine, avoiding usurpation of the legislative function) but also for theoretical reasons. Those decisions provide, in general, the best available evidence of the collective wisdom of the common law. The judge is the privileged representative of the community, entrusted with its collective legal wisdom, which he is authorized to draw upon constructively in order to produce solutions to novel issues raised before the court. The legitimacy of common law resides not in the political system but in the community. The authority of the judge is not as a political decision-maker certainly not as delegate of the king or parliament) but as representative of the community. Hence, he has authority only to state the community’s law, not to impose law upon the community as if he were a political ruler. The community is to be thought of here as something uniting past and present, extending back through innumerable past generations as well as encompassing the present one. [2]

Transition to the Colonies: An Example the Due Process Clause

For the English-speaking peoples it may be that Article 39 of Magna Carta (June 15, 1215) and its subsequent interpretation settled any doubts as to preferment of the accusatorial-adversary procedures. Its language eventually safeguarded the “free man” from being “in any way ruined … except by the lawful judgement of his peers or by the law of the land.” In addition to this general clause, the Great Charter contained other specific procedural ones. However, as James Madison remarked in 1789 when proposing the future Bill of Rights: ”Magna Carta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.” Magna Carter nevertheless became a sacred text in England and famous as the precursor of the phrase, “due process of law,” first used by Edward III in a statute of 1354. It was, however, Sir Edward Coke’s Second Institute which emphasized the concept and insisted that ”law of the land” meant “due process of law” it thus became a part of the common law and was given a natural-law interpretation and flavor.

The American colonial reception and modification of the ideal of due process of law is disclosed in the early charters granted by the Crown, the laws of the colonists, the documents preceding and following the American Revolution, and the various state and federal constitutions. Colonial statues and documents continued the Crown charters; general references but also became more specific. For example, acting under the grant by Charles I in 1629 the Massachusetts colonists agreed ”to frame a body or grounds of laws in resemblance to a Magna Carta,” and their 1641 Body of Liberties provided somewhat detailed procedures. The New England Confederation of 1643, The Dutch provisions for New Amsterdam in 1663, and the New York “Charter of Libertyes and Priviledges” of 1683, all provided for a form of due process, and due process was claimed as right by the congress of the Colonies held in New York in 1765. Similarly, the First Continental congress of 1774 resolved that the colonists “are entitled to life, liberty and property … (and) to the common law of England,” and following its suggestion, the colonies promulgated their own Constitutions. The famous Declaration of Rights adopted by Virginia in 1776 included the guarantee “that no man be deprived of his liberty, except by the law of the land, or the judgment of this peers,” and with minor changes in language this was the general type of clause used. It was also found in the famous Northwest Ordinance of 1787.

The constitutional convention of 1787 discussed briefly and adopted a few procedural rights. In some of the state ratifying conventions, bare majorities were obtained only because of promised amendments…..Of the ten amendments to the American Constitution ratified in 1791, the first eight are generally termed the Bill of Rights.

Without the guidance of precedent based an the accumulated wisdom of the past and declared as the basis of decision by the authorized oracle, whether judge or jurist, men, it is said, would have no certainty of the law or confidence in quality before an evenhanded justice. Precedent assists the litigant or his advisor to assess the extent of his rights and duties and restricts the scope of litigation. Nor is it the Party litigant or accused alone that rejects the idea of arbitrary justice. The judge or other law give, unless he claims to speak as the medium of the gods with access to supernatural revelation or as an autocrat, prefers as a rule to show preexisting legal justification for the decision or sentence which he pronounces. Judges of lesser ability and experience may be fortified by the opinions of the most eminent. Moreover, the busiest courts where most justice is administered the machinery would break down if all judges took it on themselves to reexamine, in disregard or precedent, each aspect of every case before them. It is not indolence alone that suggests conformity to established practice. If justice requires that like cases by decided alike, this implies equality before the law, Yet, no more than two men’s fingerprints are identical, are all the facts of two legal proceedings. The law itself selects either by general rules or by the individuation of equity what facts are relevant to exclude precedent. Unfortunately as lawyers have come to see, the question whether an earlier is a precedent for the present situation depends on an assessment of essential similarities and differences between the two. [3]



  1. Definition of Common Law from A Concise Law Dictionary (1927).
  2. Notes from Order, Law, and Crime by Raymond Michalowski and The Politics of Jurisprudence by Roger Cotterrell
  3. Dictionary of the History of Ideas Volume III Philip P. Weiner

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