Common Law

common law, system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term "common law" is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation (see statute), and also to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice.

All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.

Characteristic Features of Common Law

The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.

Development of Common Law

Early common law was somewhat inflexible; it would not adjudicate a case that did not fall precisely under the purview of a particular writ and had an unwieldy set of procedural rules. Except for a few types of lawsuits in which the object was to recover real or personal property, the only remedy provided was money damages; the body of legal principles known as equity evolved partly to overcome these deficiencies. Until comparatively recent times there was a sharp division between common law (or legal jurisprudence) and equity (or equitable jurisprudence). In 1848 the state of New York enacted a code of civil procedure (drafted by David Dudley Field) that merged law and equity into one jurisdiction. Thenceforth, actions at law and suits in equity were to be administered in the same courts and under the same procedure. The Field code reforms were adopted by most states of the United States, by the federal government, and by Great Britain (in the Judicature Act of 1873).


See O. W. Holmes, The Common Law (1881; new ed., ed. by M. DeWolfe Howe, 1963, repr. 1968); T. F. Plucknett, Concise History of the Common Law (5th ed. 1956); H. Potter, Historical Introduction to English Law and Its Institutions (4th ed. 1958); A. R. Hogue, Origins of the Common Law (1966); R. C. van Caenegem, The Birth of the English Common Law (1973); J. H. Baker, The Legal Profession and the Common Law (1986); R. L. Abel and P. S. C. Lewis, ed., The Common Law World (1988).

The Columbia Encyclopedia, 6th ed. Copyright© 2018, The Columbia University Press.

Common Law: Selected full-text books and articles

Statutory and Common Law Interpretation By Kent Greenawalt Oxford University Press, 2013
Leading Cases in the Common Law By A. W. Brian Simpson Oxford University Press, 1996
The Common Law By Oliver Wendell Holmes Jr Little, Brown, 1923
FREE! The Spirit of the Common Law By Roscoe Pound Marshall Jones, 1921
European Law in the Past and the Future: Unity and Diversity over Two Millennia By R. C. van Caenegem Cambridge University Press, 2001
Librarian's tip: Chap. 3 "Common Law and Civil Law: Nieghbours yet Strangers"
Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions By P. S. Atiyah; Robert S. Summers Clarendon Press, 1991
Librarian's tip: Chap. 5 "The Common Law"
Law and Legal Theory in England and America By Richard A. Posner Clarendon Press, 1996
Librarian's tip: "Lecture Two: The Common Law" begins on p. 39
Essays on English Law and the American Experience By William R. Jones; Craig Evan Klafter; Thomas P. Slaughter; Elisabeth A. Cawthon; Yasuhide Kawashima; Calvin Woodard; David E. Narrett Texas A&M University Press, 1994
Librarian's tip: "Is the United States a Common Law Country?" begins on p. 120
Change and Continuity: Statute, Equity, and Federalism By W. M. C. Gummow Oxford University Press, 1999
Librarian's tip: "Lecture One-- the Common Law and Statute" begins on p. 1
Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism By T. R. S. Allan Oxford University, 1994
Librarian's tip: Chap. 6 "Constitutional Rights and Common Law"
The People's Welfare: Law and Regulation in Nineteenth-Century America By William J. Novak University of North Carolina Press, 1996
Librarian's tip: Chap. One "The Common Law Vision of a Well-Regulated Society"
Common Law and Feudal Society in Medieval Scotland By Hector L. MacQueen Edinburgh University Press, 1993
Southern Cross: Civil Law and Common Law in South Africa By Reinhard Zimmermann; Daniel Visser Clarendon Press, 1996
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