Definition
"Ordinary" functions in law both as an adjective and as a noun, and the two uses are largely independent of each other.
1. As an adjective: Common, customary, or of the usual standard. Used to qualify duties, care, skill, losses, income, and similar legal concepts, "ordinary" typically signals the default or baseline measure — what a reasonable person of average prudence or ability would do or experience under normal circumstances. It is the opposite of "extraordinary" or "gross." In this sense, "ordinary" is less a term of art than a contextual modifier whose precise weight depends on the surrounding doctrine — ordinary care in negligence is different from ordinary income in tax law, and both differ from ordinary course of business in commercial transactions.
2. As a noun (historical English law): An ecclesiastical judge possessing original, inherent jurisdiction in church matters within a defined territory — jurisdiction held in his own right (ex officio), not by delegation. A bishop was the ordinary of his diocese; an archbishop was the ordinary of the entire province. The term also applied to archdeacons and certain officers of the royal household. The defining feature was immediacy and independence of jurisdiction.
3. As a noun (American law): In several states, a judicial officer — sometimes called the judge of probate or surrogate — vested by statute with jurisdiction over the probate of wills, administration of decedents' estates, guardianship, and related matters. This officer inherited the functional role of the English ecclesiastical ordinary in those subjects that had been handled by church courts in England but were civil matters in America from the outset.
Common Language
Modern common usage (Wiktionary): Normal, customary, routine; lacking special characteristics; everyday, mundane. In informal usage, often mildly deprecatory — plain or unremarkable.
Historical common usage (Webster's 1913): According to established order; methodical; settled; regular; of common rank or ability; not distinguished by superior excellence; commonplace.
The common meaning is not far from the adjectival legal meaning, but the gap appears at the edges. In law, "ordinary" is a neutral, functional standard — not a pejorative. "Ordinary care" is the legally required standard, not a criticism. More significantly, the noun form — an officer holding inherent ecclesiastical or probate jurisdiction — has no presence in ordinary English and would be completely opaque to a non-specialist encountering it in historical sources.
Recognized Forms
/SUBTYPES
As an adjective, "ordinary" recurs across several distinct doctrinal contexts, each with its own developed meaning:
Ordinary care / ordinary diligence / ordinary skill: The degree of care, diligence, or skill exercised by a person of average prudence under the same or similar circumstances. Foundational to negligence analysis and professional liability.
Ordinary course of business: Transactions or conduct that fall within the normal, customary operations of a trade or enterprise. Critical in commercial law (UCC Article 9 buyer-in-the-ordinary-course protections), bankruptcy preference analysis, and fraud examination.
Ordinary income (tax law): Income taxed at standard graduated rates, as opposed to capital gains or other preferentially taxed categories. A purely statutory and regulatory concept with no common-law counterpart.
Ordinary losses: Losses that are deductible against ordinary income; contrasted with capital losses subject to special limitations.
Ordinary meaning (statutory interpretation): The plain, everyday sense of a statutory term, often invoked against technical or specialized readings.
Why It Matters in Research
Researchers face two distinct challenges with this term depending on the era and subject matter of their inquiry.
For historical and ecclesiastical sources, "ordinary" as a noun is the operative term. Pre-19th-century English materials — in ecclesiastical law, criminal procedure (benefit of clergy was claimed before the ordinary), and chancery practice — use "ordinary" to mean a specific officer with a specific jurisdictional character. Encountering "the ordinary" in a historical English legal text and treating it as an adjective is a reading error that changes the meaning entirely.
For American legal history, the noun form shifts. American states that retained the title "ordinary" for their probate officers — most notably South Carolina and Georgia — created a body of statutory law and reported decisions where "ordinary" still means a judicial officer. In most states, the officer was renamed (surrogate, judge of probate, probate court judge), so a researcher working across jurisdictions must recognize both the functional equivalence and the terminological divergence.
For modern research, the adjectival uses are the live terrain. "Ordinary course of business" is particularly dense with nuance: it appears differently in UCC Article 9, in fraudulent transfer law, in bankruptcy preference exceptions, and in corporate law fiduciary duty analysis. These uses are related but not interchangeable, and conflating the standard across contexts is a common error in secondary sources.
Researchers working in tax materials should note that "ordinary income" and "ordinary loss" are entirely creatures of the Internal Revenue Code and regulations — the common-law background of "ordinary" as an adjective is essentially irrelevant in that context.
The historical dictionaries are useful for the noun form but sparse on the doctrinal development of the adjectival uses, which evolved primarily through case law and statutory elaboration in the 19th and 20th centuries.
Historical Dictionary Support
The historical sources are consistent and complementary on the noun form. Burrill provides the most technical account, emphasizing that the civil law root (ordinarius) denoted a judge with authority taken in his own right rather than by delegation — the independence of jurisdiction is the essential feature. Bouvier and Black echo this, adding the English ecclesiastical hierarchy: bishop as ordinary of the diocese, archbishop of the province. Anderson's is the most practically useful, presenting both the adjective and noun cleanly and noting the American statutory context.
Rapalje & Lawrence is the outlier here — the excerpted material addresses "ordered" and related terms rather than "ordinary" as a substantive entry, limiting its usefulness for this term specifically.
None of the historical sources develops the adjectival uses with the depth that modern doctrine requires. "Ordinary care" appears in passing as a cross-reference rather than as a worked definition, and "ordinary course of business" as a commercial law concept postdates the core editions of most shelf dictionaries. This is a meaningful gap: researchers should not rely on historical dictionary treatments to understand how "ordinary" functions in UCC, bankruptcy, or tax contexts.
Jurisdictional Note
The title "ordinary" for a probate officer survived longest in South Carolina, where the constitutional office of Ordinary remained in use well into the 20th century. Georgia also used the title historically. In most other American jurisdictions, the officer exists under a different name (surrogate in New York and New Jersey; judge or court of probate elsewhere), but the functional inheritance from the ecclesiastical ordinary is the same. In England, the ecclesiastical court jurisdiction that gave the ordinary his authority was largely absorbed into the civil court structure through 19th-century reforms.
Encyclopedia Cross-Reference
Secured Transactions — Buyers in the Ordinary Course of Business (S9-320), The Law Mind Contracts & Commercial Law Encyclopedia