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Common law has several distinct meanings: the common law legal system, as
contrasted with the civil law legal system; common law, as contrasted with
statutory law; and common law, as contrasted with equity. It may also refer
to the jus commune or law of the land as in the very confusing phrase, the
common law of the civil law systems, meaning those underlying laws that
create a distinct legal system and common to all its elements.
The common law originally developed under the auspices of the adversarial
system in historical England from judicial decisions that were based in
tradition, custom, and precedent. The form of reasoning used in common law
is known as casuistry or case-based reasoning. Common law may be unwritten
or written in statutes or codes. The common law, as applied in civil cases
(as distinct from criminal cases), was devised as a means of compensating
someone for wrongful acts known as torts, including both intentional torts
and torts caused by negligence and as developing the body of law recognizing
and regulating contracts. Though today common law only is generally thought
of as applying to civil disputes; originally in encompassed the criminal law
before criminal codes were adopted in most common law jurisdictions in the
late 19th century. The type of procedure practiced in common law courts is
known as the adversarial system which is also a development of the common law.
Before the institutional stability imposed on England by William the
Conqueror in 1066, English citizens were governed by unwritten local customs
that varied from community to community and were enforced in often arbitrary
fashion. For example, courts generally consisted of informal public
assemblies that weighed conflicting claims in a case and, if unable to reach
a decision, might require an accused to test guilt or innocence by carrying
a red-hot iron or snatching a stone from a caldron of boiling water or some
other "test" of veracity. If the defendant's wound healed within a
prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many
achievements, Henry institutionalized common law by creating a unified
system of law "common" to the country through incorporating and elevating
local custom to the national, ending local control and peculiarities,
eliminating arbitrary remedies, and reinstating a jury system of citizens
sworn on oath to investigate reliably criminal accusations and civil claims.
The jury reached its verdict through evaluating common local knowledge, not
necessarily through the presentation of evidence, a distinguishing factor
from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed
somewhat the power of canonical (church) courts, brought him (and England)
into conflict with the church, most famously, with Thomas Becket, the
archbishop of Canterbury. Things were resolved eventually, at least for a
time, in Henry's favor when a group of his henchmen murdered Becket. For its
part, the Church soon canonized Becket as a saint.
By the 17th century, the judicial system recognized that certain wrongs,
such as trespass, were not susceptible of compensation because the wronged
person didn't care about the money but wanted his land back (trespass) or
the benefit of his bargain (that house he agreed to purchase), and mere
compensation could not make him whole. From this, courts of chancery
developed in England with a purpose of doing what was fair ("equitable"),
and through these courts one could force the wrongdoer to sell him that
house or get off his land (or go to jail if he still refused). In England,
courts of law and equity were combined in 1875, and the roles of the
advocates appearing before them were amalgamated into one -- a solicitor.
Barristers also operate in some common law courts. These systems of law
(providing money damages) and equity (fashioning a remedy to fit the
situation) continued as parallel systems and courts well into the 20th
century in most courts in the United States: In the federal courts there is
no separation between law and equity; Delaware still has separate courts of
law and equity, and in many states there are separate divisions for law and
equity within one court.
The common law constitutes the basis of the legal systems of: the United
Kingdom (except Scotland), the United States (except Louisiana, California
(isn't California also common-law based?)** and Puerto Rico), Canada (except
Quebec), Australia, New Zealand, South Africa, India, Singapore, and many
other generally English-speaking countries or Commonwealth countries.
Basically, every country which has been colonised at some time by Britain
except those British colonies that were taken over from other Empires, such
as Quebec (following French law to some extent) and South Africa (following
Roman Dutch law to some extent) where the prior civil law system was
retained to respect the civil rights of the local colonists. India's system
of common law is also a mixture of English law and the local Hindu law.
The main alternative to the common law system is the civil law system, which
is used in Continental Europe, Quebec, Louisiana, the former Soviet bloc,
and most of the rest of the world. Scotland is often said to use the civil
law but in fact it has a unique system which combines elements of an
uncodified civil law dating back to the Corpus Juris Civilis with a
influence of common law after the unification with England in 1707.
Statutes which reflect English common law are understood to always be
interpreted in light of the common law tradition, and so may leave a number
of things unsaid because they are already understood from pre-existing case
law and custom.
By contrast, some laws are purely statutory, and may create a new cause of
action. An example of this would be the tort of wrongful death, which allows
certain persons, usually a spouse or child or estate, to sue for damages on
behalf of the deceased. There is no such tort in English common law; thus,
any state that lacks a wrongful death statute will not allow a lawsuit for
the wrongful death of a loved one. Where a wrongful death statute exists,
the damages or compensation available are limited to those outlined in the
statute (typically, an upper limit on the amount of damages). Courts
generally interpret statutes that create new causes of action narrowly -
that is, limited to their precise terms - because the courts recognize the
legistature as being supreme in decided the reach of judge made law unless
such statute should violate some second order constitutional law provision.
Where a tort is grounded in common law, then all damages traditionally
recognized historically for that tort may be sued for, whether mentioned in
current statutory law or not. For instance, a person who sustains bodily
injury through the negligence of another may sue for medical costs, pain,
suffering, loss of earnings or earning capacity, mental and/or emotional
distress, loss of quality of life, disfigurement, and more. These damages
need not be set forth in statute as they already exist in the tradition of
common law. However, without a wrongful death statute, most of them are
extinguished upon death. An old saw (in states with no or low wrongful death
damages) stated that it was better to back up and over the person to ensure
his death and limit your exposure!
The definitive historical treatise on the common law is Commentaries on the
Laws of England, written by Sir William Blackstone and first published in
1765 - 1769. Since 1979 a facsimile edition of that first edition has been
available in four paper-bound volumes. Today it has been superseded in the
English part of the United Kingdom by Halsbury's Laws of England that covers
both common and stautory English law.