COMMON LAW - The Law Mind Legal Dictionary

COMMON LAWAuthored

The Law Mind • 1661 words

Definition

Common law is a term with several distinct but related meanings, all rooted in the idea of law developed through judicial decisions rather than enacted by a legislature. Context determines which sense is operative.

1. Judge-made law (case law). The body of legal rules and principles derived from court decisions, precedent, and judicial reasoning, as distinguished from statutory law enacted by a legislature or regulations issued by an executive agency. This is the most common modern usage. Common law develops incrementally: courts apply prior decisions (precedent) to new facts, extending, limiting, or occasionally overruling earlier rulings. The doctrine of stare decisis — adherence to prior decisions — is the mechanism that gives common law its continuity and predictability.

2. The Anglo-American legal tradition. The entire system of law originating in England and inherited by most jurisdictions with historical ties to English governance — including the United States, Canada, Australia, and others. Used in this sense, "common law" contrasts with civil law systems (continental Europe, Louisiana, Quebec), which derive from Roman law and rely primarily on comprehensive codes rather than accumulated judicial decisions.

3. Common law versus equity. Historically in England, and in early American courts, "common law" referred specifically to the law administered by the common law courts (King's Bench, Common Pleas, Exchequer), as opposed to equity administered by the Court of Chancery. This distinction shaped procedural rights — including the right to jury trial — and persists in constitutional interpretation even after the merger of law and equity in most modern court systems.

4. Common law versus statute. Within a single jurisdiction, "common law" refers to rules established by courts where no controlling statute governs. When a legislature enacts a statute, it may codify, modify, or abrogate a common law rule. Absent legislation, the common law rule applies by default.

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Common Language

Wiktionary (modern common usage): "Law developed by judges, courts, and agency adjudicatory tribunals through their decisions and opinions (case law), as opposed to statutes promulgated by legislatures and regulations promulgated by the executive branch." Also: a legal system with heavy emphasis on judge-made law and doctrines deduced by casuistry rather than from general principles.

Webster's 1913 (historical common usage): "The body of customary law, based upon judicial decisions and embodied in reports of decided cases, that has been administered by the common-law courts of England since the Middle Ages. It is now to a large extent embodied in statutes."

The ordinary usage of "common law" tracks the legal meaning closely enough that confusion is rare in that direction. The research trap runs the other way: lawyers and legal sources use "common law" in at least four distinct senses (see Definition above), often without signaling which is meant. A source describing a "common law rule" may be invoking judge-made precedent, contrasting the Anglo-American tradition with civil law, distinguishing historical law-court doctrine from equity, or simply identifying the default rule in the absence of statute. Reading the context is essential.

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Common Confusion

Common law / civil law: In comparative law, "civil law" refers to the Roman-derived codified legal tradition of continental Europe and its influenced jurisdictions. "Common law" refers to the English-derived system. These are mutually exclusive categories at the macro-systemic level. Within an American common law jurisdiction, however, "civil law" means private law (contracts, torts, property) as opposed to criminal law — a completely different usage. Both sets of meanings coexist in legal literature, and the distinction is not always signaled.

Common law / equity: Even after the procedural merger of law and equity in federal courts (FRCP, 1938) and in most state systems, courts and scholars continue to distinguish common law rules from equitable doctrines. The distinction matters for remedy analysis (damages vs. injunction), jury trial rights (Seventh Amendment), and the historical pedigree of particular rules. Sources predating merger use "common law" in the narrow sense of non-equity law; modern sources may use it in the broader sense that subsumes equity. Know your era.

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Recognized Forms

/SUBTYPES

Federal common law. Judge-made law developed by federal courts in areas where federal authority is exclusive or where a uniform national rule is constitutionally or statutorily required. Erie R.R. v. Tompkins (1938) eliminated the general federal common law that had existed under Swift v. Tyson (1842), but recognized enclaves of true federal common law persist — admiralty, international relations, certain proprietary and interstate disputes. This is a technically distinct category from state common law.

Common law marriage. A marriage recognized as valid without a formal ceremony or license, based on the parties' agreement, cohabitation, and holding themselves out as married. Recognized in a shrinking number of U.S. jurisdictions. Treated as a distinct legal institution, not merely an informal arrangement.

Common law crimes. Offenses defined by judicial decision rather than by statute. Largely abolished in American federal law and in many states, which require statutory definition of criminal conduct. The question of whether a jurisdiction retains common law crimes has significant due process implications.

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Why It Matters in Research

The multi-sense problem is the central research hazard. A historical source using "common law" in the law-versus-equity sense is saying something entirely different from a modern source using it in the case-law-versus-statute sense. Burrill and early Blackstone use "common law" to mean the whole body of English law, including statutes. Rapalje & Lawrence use it narrowly to mean the law administered by the common law courts (excluding equity). Modern American usage generally means judge-made precedent. A researcher reading across these sources without flagging the definitional shift will import incorrect meaning.

Erie is a fault line. Pre-Erie federal cases (pre-1938) assumed the existence of a general federal common law applicable in diversity cases. Post-Erie, that general federal common law is gone. Any research touching on federal court decisions before 1938 must account for this. The cases look like common law reasoning but rest on a premise that no longer holds.

Jurisdictional reception statutes matter. When American colonies and later states adopted English common law, they did so through reception statutes that typically fixed a cutoff date (often July 4, 1776, or a specific colonial date) for which English common law was received. English common law developments after that date are not automatically part of a state's common law. Historical English sources may describe rules that were never received in a given American jurisdiction.

Abrogation by statute is often silent. When a legislature enacts a statute occupying a field previously governed by common law, the statute may not explicitly state that it abrogates prior common law rules. Courts must determine the extent of displacement. Research that finds a statute without checking the underlying common law background — or that finds common law authority without checking for superseding legislation — will produce incomplete results.

The civil law/common law divide affects source comparability. Treatises, codes, and judicial decisions from civil law jurisdictions follow different interpretive conventions. A common law researcher using civilian sources (or vice versa) needs to translate not just doctrine but method.

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Historical Dictionary Support

The historical dictionaries largely agree on the foundational description but differ in emphasis and scope.

Burrill offers the broadest historical definition: "the whole body of the law of England, as distinguished from the civil and canon laws," encompassing statute law as well. This reflects the older usage in which "common law" simply meant English law as a system. Burrill's Latin and Law French equivalents (Lex communis, Jus commune, comen ley) are useful for reading medieval and early modern sources.

Black's (1st Ed.) draws the modern American distinction cleanly: common law as against Roman/civil/canon law (systemic sense), and common law as against enacted legislation (source sense). The definition is functional and forward-looking. Black's 2nd Ed. adds granular compound terms (common repute, common right) that reflect how "common" operated as a legal modifier more broadly.

Bouvier emphasizes character over structure: "reason dealing by the light of experience with human affairs," with "the capacity to reach the ends of justice by the shortest paths." This is an advocacy position as much as a definition — useful for understanding how American lawyers of the 19th century understood and valorized the common law tradition.

Rapalje & Lawrence is the most technically precise about the law/equity distinction, defining common law by reference to the specific historical courts that administered it. This definition is essential for reading English sources before the Judicature Acts of 1873–75, which fused the courts, and for reading American sources before the merger of law and equity under the Federal Rules.

What the historical dictionaries largely omit: the Erie problem and the distinction between state and federal common law, which did not crystallize until the 20th century. They also do not address the common law of crimes debate with the clarity that modern constitutional doctrine requires.

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Jurisdictional Note

Louisiana (and to a lesser extent Puerto Rico) operates primarily under a civil law system derived from French and Spanish codes, not the common law tradition. Research crossing into Louisiana law requires awareness that common law precedent and reasoning carry different weight there. Most U.S. states and federal courts are common law jurisdictions, but the degree to which common law crimes are recognized varies significantly — federal courts do not recognize common law crimes, while a handful of states retain them in limited form.

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COMMON LAWmain

Black's Law Dictionary • 1891

from the Roman law, the modern civil law, the canon law, and other systems, the com- mon law is that body of law and juristic theory which was originated, developed, and formu- lated and is administered in England, and has obtained among most of the states and peoples of Anglo-Saxon stock. 2. As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the govern- ment and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. 3. As distinguished from equity law, it is a body of rules and principles, written or un- written, which are of fixed and immutable authority, and which must be applied to con- troversies rigorously and in their entirety, and cannot be modified to suit the peculiari- ties of a specific case, or colored by any judi- cial discretion, and which rests confessedly upon custom or statute, as distinguished from any claim to ethical superiority. 4. As distinguished from ecclesiastical law, it is the system of jurisprudence admin- istered by the purely secular tribunals. 5. As concerns its force and authority in the United States, the phrase designates that portion of the common law of England (in- cluding such acts of parliament as were ap- plicable) which had been adopted and was in force here at the time of the Revolution. This, so far as it has not since been expressly abrogated, is recognized as an organic part of the jurisprudence of most of the United States. that part of the positive law, juristic theory, and ancient custom of any state or nation thus marking off special or local rules or cus- which is of general and universal application, toms.

COMMON LAWmain

Bouvier's Law Dictionary • 1928

That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradis- tinction to other great systems, such as the Roman or civil law. The common law is reason dealing by the light of experience with human affairs. One of its merits is that it has the capacity to reach the ends of justice by the shortest paths. 100 U. S. 584. Sce COUTUME. Those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. 1 Kent 492. The body of rules and remedies adminis- tered by courts of law, technically so called, in contradistinction to those of equity and to the canon law. The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application. The most prominent characteristic which marks this contrast, and perhaps the source of the distinc- tion, lies in the fact that under the common law neither the stiff rule of a long antiquity, on the one hand, nor, on the other, the sudden changes of a present arbitrary power, are allowed ascendency, but, under the sanction of a constitutional govern- ment, each of these is set off against the other; so that the will of the people, as it is it is gathered both from long established custom and from the expres- sion of the legislative power, gradually forms a sys- tem-just, because it is the deliberate will of a free people-stable, because it is the growth of centuries -progressive, because it is amenable to the con- stant revision of the people. A full idea of the genius of the common law cannot be gathered without a survey of the philosophy of English and American history. Some of the elements will, how- ever, appear in considering the various narrower senses in which the phrase "common law" is used. Perhaps the most important of these narrower senses is that which it has when used in contradis- tinction to statute law, to designate unwritten as distinguished from written law. It is that law which derives its force and authority from the uni- versal consent and immemorial practice of the people. It has never received the sanction of the legislature by an express act, which is the criterion by which it is distinguished from the statute law. When it is spoken of as the lex non scripta, it is meant that it is law not written by authority of law. The statutes are the expression of law in a written form, which form is essential to the statute. The decision of a court which establishes or declares & rule of law may be reduced to writing and pub- lished in the reports; but this report is not the law; it is but evidence of the law; it is but a written ac- count of one application of a legal principle, which principle, in the theory of the common law, is still unwritten. However artificial this distinction may appear, it is nevertheless of the utmost importance, and bears continually the most wholesome results. It is only by the legislative power that law can be bound by phraseology and by forms of expression. The common law eludes such bondage; its prin- ciples are not limited nor hampered by the mere forms in which they may have been expressed, and the reported adjudications declaring such principles are but the instances in which they have been ap- plied. The principles themselves are still unwritten, and ready, with all the adaptability of truth, to meet every new and unexpected case. Hence it is said that the rules of the common law are flexible; 1 Grav 263: 1 Swan 42; 5 Cow. 587, 628, 682. It naturally results from the inflexible form of the statute or written law, which has no self-con- tained power of adaptation to cases not foreseen by legislators, that every statute of importance be- comes, in course of time, supplemented, explained, enlarged, or limited by a series of adjudications upon it, so that at last it may appear to be merely the foundation of a larger superstructure of unwrit ten law. It naturally follows, too, ows, too, from the less defi- nite and precise forms in which the doctrine of the unwritten law stands, and from the proper hesita- tion of courts to modify recognized doctrines in new exigencies, that the legislative power fre- quently intervenes to declare, to qualify, or to ab- rogate the doctrines of the common law. Thus, the written and the unwritten law, the statutes of the present and the traditions of the past, interlace and react upon each other. Historical evidence sup- ports the view which these facts suggest, that many of the doctrines of the common law are but the common-law form of antique statutes, long since overgrown and imbedded in judicial decisions. While this process is doubtless continually going on in some degree, the contrary process is also con- tinually going on; and to a very considerable ex- tent, particularly in the United States, the doc

COMMON LAWmain

Bouvier's Law Dictionary • 1928

There can be no constructive offences, and before a man can be punished, his case must be plainly and unmistakably within the statute; 134 U. S. 624; 158 U. S. 282. Deliberation and premeditation to com- mit crime need not exist in the criminal's mind for any fixed period before the com- mission of the act; 159 U. S. 510. A crime malum in se is an act which shocks the moral sense of the community as being grossly immoral and injurious. With regard to some offences, such as mur- der, rape, arson, burglary, and larceny, there is but one sentiment in all civilized countries, which is that of unqualified con- demnation. With regard to others, such as adultery, polygamy, and drunkenness, in some communities they are regarded as mala in se; while in others they are not even mala prohibita. An offence is regarded as strictly a malum prohibitum only when, without the prohi- bition of a statute, the commission or omis- sion of it would in a moral point of view be regarded as indifferent. The criminality of the act or omission consists not in the simple perpetration of the act, or the neg- lect to perform it, but in its being a viola- tion of a positive law. It is not only just, but it has been found necessary, to have the severity of punish- ment proportioned to the enormity of crimes. Different opinions are entertained as to what should be the highest in degree. In England, there are at present only two crimes for which the death penalty is en- forced; namely, treason and murder. In Scotland, by act of 1887, 50 and 51 Vic. chap. 38, it is enacted that capital sentences shall be abolished, except on conviction of murder or offences against the act 10 Geo.

common lawnoun

Wiktionary (English) • 2026

Wiktionary contributors • CC BY-SA 4.0 • via Kaikki
Extracted and formatted for display by Law Mind. Source link opens the current Wiktionary page and its contributor history; it is not a frozen copy of this extract.

Law developed by judges, courts, and agency adjudicatory tribunals, through their decisions and opinions (also called case law) (as opposed to statutes promulgated by legislatures, and regulations promulgated by the executive branch). | Legal system mainly in England and its former colonies with a heavy emphasis on judge-made law, doctrines deduced by casuistry rather than from general principles, and law distributed among judicial decisions rather than codified statutes (as opposed to civil law). | Body of law and procedure administered in certain courts (known as law courts) in England and its former colonies characterized by a rigid system of writs, with a limited set of remedies (as opposed to equity or admiralty). | Law of general application throughout a country, province, or state as opposed to law having only a special or local application

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