COMMON LAW
common law,n.[fr. Law French commen ley “common law”] 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law>. Cf. STATUTORY LAW. [Cases: Common Law 1. C.J.S. Common Law §§ 1–4, 21.]
“Historically, [the common law] is made quite differently from the Continental code. The code precedes judg-ments; the common law follows them. The code articulates in chapters, sections, and paragraphs the rules in accordance with which judgments are given. The common law on the other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the judge’s duty to ascertain the law from the words which the code uses. Where the common law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges followed his decision. They did not do so by construing the words of his judgment. They looked for the reason which had made him decide the case the way he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the words, which went into the common law. So historically the common law is much less fettering than a code.” Patrick Devlin, The Judge 177 (1979).
federal common law.The body of decisional law derived from federal courts when adjudicating federal questions and other matters of federal concern, such as disputes between the states and foreign relations, but excluding all cases governed by state law. • An example is the nonstatutory law applying to interstate streams of commerce. [Cases: Federal Courts 374.]
“Notwithstanding Erie, the federal common law still lives in a number of areas. In some, such as admiralty, … the power to create common law has been inferred from a constitutional or statutory grant of jurisdiction, where a federal common law has appeared necessary to accomplish the purposes of the grant. In other cases, on more or less persuasive evidence, the [Supreme] Court has inferred implicit damage remedies on behalf of injured parties from federal statutes imposing duties for their protection, or has found an implicit congressional delegation of authority to make common law, as in actions on collective-bargaining agreements affecting commerce under the Taft–Hartley Act, § 301.” David P. Currie, Federal Jurisdiction in a Nutshell 226 (3d ed. 1990). general federal common law.Hist. In the period before Erie v. Tompkins (304 U.S. 64, 58 S.Ct. 817 (1938)), the judge-made law developed by federal courts in deciding disputes in diversity-of-citizenship cases. • Since Erie, a federal court has been bound to apply the substantive law of the state in which it sits. So even though there is a “federal common law,” there is no longer a general federal common law applicable to all disputes heard in federal court.
- The body of law based on the English legal system, as distinct from a civil-law system; the general An-glo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies <all states except Louisiana have the common law as their legal system>. Cf. CIVIL LAW(1).
American common law. 1. The body of English law that was adopted as the law of the American colonies and supplemented with local enactments and judgments. 2. The body of judge-made law that developed during and after the United States’ colonial period, esp. since independence. — Also termed Anglo-American common law.
“Every country has its common law. Ours is composed partly of the common law of England and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, until at length, before the time of the Revolution, we had formed a system of our own, founded in general on the English Constitution, but not without considerable variations.” Guardians of the Poor v. Greene, 5 Binn. 554, 557 (Pa. 1813).
- General law common to the country as a whole, as opposed to special law that has only local application <the issue is whether the common law trumps our jurisdiction’s local rules>. — Also termed jus commune.“In its historical origin the term common law (jus commune) was identical in meaning with the term general law …. The jus commune was the general law of the land — the lex terrae — as opposed to jus speciale. By a process of historical development, however, the common law has now become, not the entire general law, but only the residue of that law after deducting equity and statute law. It is no longer possible, therefore, to use the expression common law and general law as synonymous.” John Salmond, Jurisprudence 97 (Glanville L. Williams ed., 10th ed. 1947).
“[I]t is necessary to dispose briefly of a problem of nomenclature. European equivalents of the expression ‘common law’ have been used, especially in Germany, to describe an emergent system of national law, based on the Roman model, that came into existence before national parliaments undertook to enact laws for the nation as a whole. In this use, ‘the common law’ (gemeines Recht) was used to distinguish the commonly shared tradition of Roman law from local statutes and customs.” Lon L. Fuller, Anatomy of the Law 133 (1968).
- The body of law deriving from law courts as opposed to those sitting in equity <a mortgage founded in common law>. • The common law of England was one of the three main historical sources of English law. The other two were legislation and equity. The common law evolved from custom and was the body of law created by and administered by the king’s courts. Equity developed to overcome the occasional rigidity and unfairness of the common law. Originally the king himself granted or denied petitions in equity; later the task fell to the chancellor, and later still to the Court of Chancery. [Blacks Law 8th]