Definition
A Latin maxim meaning "according to the common law." The phrase signals that a rule, procedure, or decision proceeds from or conforms to the general principles of the common law, as distinguished from local custom, equity, statute, or special privilege. It functions in legal texts primarily as a qualifier — identifying the source of authority or the standard by which a matter is to be judged.
Why It Matters in Research
Researchers encounter this phrase most often in medieval and early modern legal texts, plea rolls, and treatises where the distinction between the common law and local custom carried jurisdictional and substantive weight. The phrase is not a term of art with independent doctrinal content; it is a locational signal pointing to which body of law governs.
The critical research trap is treating *secundum legem communem* as synonymous with "correctly decided" or "according to law generally." In historical sources, the phrase specifically contrasts the royal common law administered in the central courts with local or customary law that operated in manorial courts, borough courts, and ecclesiastical jurisdictions. When a source says something was done *non secundum legem communem* — not according to the common law — it is not necessarily conceding illegality; it may simply be identifying that a different, equally legitimate legal regime applies.
Burrill's citation to Fleta (lib. 2, c. 2, § 13) is instructive here. Fleta, the late-thirteenth-century English legal treatise, uses the phrase in the context of acknowledging that certain communities governed themselves by long-established customs rather than common law rules — a recognized and tolerated arrangement, not a deviation requiring correction. Researchers working with manorial records, borough charters, or ecclesiastical proceedings should be alert to this: the absence of common law procedure in those contexts is expected and unremarkable.
For corpus researchers in Law Mind, the phrase appears as a marker in treatise literature rather than in operative legal instruments. It tends to cluster in passages explaining why a general rule does or does not apply, or why a court's jurisdiction is or is not engaged. It is useful as a navigation signal when reading around it — the surrounding text typically contains the substantive rule being described as common law, and that substantive rule is the research target.
Black's Law Dictionary appends to this entry the maxim *Secundum naturam est commoda cujusque rei eum sequi, quem sequuntur incommoda* ("It is according to nature that the advantages of anything should attach to him to whom the disadvantages attach"), drawn from Digest 50.17.10. This maxim, while thematically adjacent, is a separate legal principle — the idea that benefit and burden run together — and should not be conflated with *secundum legem communem* itself.
Historical Dictionary Support
Black's and Burrill's agree on the core translation: "according to the common law." Their entries are brief, consistent, and non-controversial. Neither attempts doctrinal elaboration, which is appropriate given the phrase's function as a qualifier rather than a standalone rule.
Burrill's entry is marginally more useful for research purposes because it provides a live example from Fleta showing the phrase in contrast — *non secundum legem communem, sed secundum suas consuetudines diu obtentas* — which captures exactly how the phrase functioned in practice: as a foil against which customary law was defined and legitimated. This contrastive usage is absent from Black's, making Burrill the better starting point for understanding the phrase's historical range.
Neither source traces the phrase into common usage after the early modern period, which reflects the reality accurately. As the common law absorbed or displaced most competing customary regimes in England, the distinction the phrase marks became less operationally significant. By the time Black's first edition appeared, the phrase was largely a relic of medieval and early modern pleading.
Jurisdictional Note
The phrase carries meaning primarily in the context of English legal history and early American common law reception. It is not in active doctrinal use in modern American or English courts. Researchers encountering it in colonial American sources should apply the same interpretive framework as in English sources: it signals the common law as distinct from local colonial custom or statutory variation.