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Encyclopedia

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 the United
Kingdom (in the Judicature Act of 1873).

Bibliography
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); Harold 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); Richard L. Abel and Philip S. C. Lewis, ed., The
Common Law World (1988).

The Columbia Encyclopedia, Fifth Edition Copyright ©1993, Columbia University