Common Law

The evolution of the common law began when Henry II established a system of English royal courts in 1166. These courts employed juries and were presided over by circuit-riding judges. These common law courts were not the only court system in medieval England. Ecclesiastical courts enforced church law and claimed jurisdiction over any crime involving a member of the clergy. Common law courts also stood in contrast to the chancery courts, or courts of equity. The highly complex and formalized system of writs and remedies developed by the law courts sometimes denied a plaintiff fair and equitable compensation for his injury. In such cases, the aggrieved party had the right to petition the chancery courts for redress.

These courts remained distinct in England until the judicature act of 1875. The decisions of English equity courts are included in common law as adopted in the United States. There is a general trend in both the U.S. and England of merging the two branches of jurisprudence. Under the Federal Rules of Civil Procedure, which came into effect in 1938, plaintiffs in federal courts may bring all claims, whether under law or equity, in the same action.

English common law also developed in contrast to civil law, or the code-based law of continental Europe. Civil courts viewed the Roman law code of Justinian and subsequent statutes as the exclusive primary sources of law, whereas English courts held that, in the absence of a statute on the subject, courts could create a rule of law through analogy with previous cases. Prior court decisions, if not overruled, then became binding on future courts as primary and definitive statements of the law. This doctrine, known as stare decisis, appeared as early as the 13th century, when judges began citing previous decisions in their verdicts. Civil law and common law remain distinct in spite of the increasing codification of law in both the United States and the United Kingdom.

U.S. Practice

The English common law was adopted by all 13 original colonies either by statute or as part of their constitutions. Almost every subsequent state has likewise adopted the common law, except for the former French colony of Louisiana, which uses continentalstyle civil law for civil cases. State statutes adopting the common law generally specify that the state adopts the common law as it existed at a particular time, such as the time of the American Revolution, or of the arrival of English settlers in America. English statutes and court decisions made prior to that time are considered part of the common law of the adopting state unless they are inapplicable to the United States. Any developments in English common law subsequent to that time are not considered to be part of the law of the state.

The common law is not fossilized as it was received from England, however. Because constitutional provisions, statutes, and court decisions may abrogate or change the common law in America, common law in the United States is not necessarily the same as English common law. Courts in the United States have a continuing duty to change the common law if it becomes obsolete. On the other hand, courts often decide that important changes in the common law are better left to the legislature. Both Congress and the state legislatures may alter or abolish the remedies or rights provided by the common law except where doing so would be unconstitutional. Statutes, if constitutional, will control over common law if there is no way to interpret the two consistently. Yet, without a comprehensive system of legislation clearly intended to replace the common law or a clear statement of legislative intent to abrogate the common law, courts will generally find a construction of a statute that is consistent with the common law.

Under Erie Railroad Co. v. Thompkins (1938), there is no general federal common law at odds with state law. Rather, the federal courts must apply the constitution, federal statutes or regulations, or the laws of the states. Insofar as all of these sources of law may incorporate or refer to the common law, however, common law issues remain important in federal jurisprudence. For example, if Congress or a state legislature uses a legal term in a statute without defining it, courts will apply the common law definition of the term when interpreting the law. American constitutions, whether state or federal, are strongly influenced by the common law as it existed at the time of the Revolution. The Second Amendment right to keep and bear arms derives from and expands upon a provision of the English Bill of Rights of 1689, which allowed only Protestants to carry weapons.

Education Law

Students, teachers, and parents may all have common law claims, remedies, or duties, unless state statutory schemes in education either explicitly overrule previously existing common law or regulate an area of education so comprehensively as to demonstrate the clear intent of the legislature to entirely abrogate the common law in that area. In addition to liability under state or federal statute, school boards and their employees may have liability under a theory of common law negligence, provided that state law does not bar civil suits against school districts as state entities. Such liability would depend on a plaintiff’s being able to prove the elements of common law negligence, including that the negligent actions of a board or its employees were the proximate cause of the injury.

James Mawdsley

See also Bill of Rights; Civil Law; Negligence; Precedent; Stare Decisis; Statute

Further Readings

  • Arnheim, M. (2004). Principles of the common law. London: Duckworth. 
  • Cantor, N. F. (1997). Imagining the law. New York: HarperCollins. 
  • Cardozo, B. N. (1921). The nature of the judicial process. New Haven, CT: Yale University Press. 
  • Holmes, O. W., Jr. (1923). The common law. Boston: Little, Brown. 

Legal Citations

  • Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).