Common Law Question

I was taught that the courts cannot make laws. However, while reading up on common law, I came across this definition on Wikipedia:Common law (also known as case law or precedent) is law developed by judges through decisions of courts

And on the legal dictionary web site:
The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts.

Common Law, reads to me, as a way of making sure all courts handle similar situations the same way, and aren’t ‘Laws of the land’, more as they are ‘Laws of Judicial handling’.

Meaning, an officer will arrest you for violating a statutory law, and the courts will use common law while handling the proceedings to find your guilt (or innocence) of the charge and in the punishment if convicted.

Would this be a good laymen’s understanding?

Also, why do we call it a law when it’s never been passed as a law by the legislature?

It’s an interpretation of a law, and creates a precedent which is often later followed by other courts interpreting that same law. It’s not creation of a new law. As the you provided says, " In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts.".

I think Judge made laws (common law) is the “law of the land” (or the particular jurisdiction).

Most laws are codified by the Legislature (e.g. statutes). A Judge cannot make a law that contradicts a statute (unless it’s unconstitutional); a Judge would merely interpret that statute. However, there are areas where the laws have not been codified - this is where the common law comes in. For example, torts remain largely uncodified and therefore the Judge’s do indeed make the laws. They are not criminal laws, but they are laws nonetheless.

Tyvm :slight_smile:

Common Law* legal systems* was and is the law of England as developed in the years after 1215 (the abolition of the ancient trial by ordeal). It is characterized Court proceedings which are adversarial in nature; meaning the [parties present evidence and the Judge is an impartial referee and arbiter. It is also based upon precedent, meaning previous decision made in cases where similar questions were raised. The difference between common law and other systems is that under Common Law, decisions of superior courts are binding on lower courts, not merely examples the court could follow.

On the issue of it being Judge made law, well the strict answer is no. Judges don’t make law, they only interpret it or they discover it (as used to be said on the Kings Bench in England). In practical terms however as decisions of the Courts are binding and are departed from only reluctantly, this means that Judges do in fact make law. How did it come about you ask? Well from the law reports. A judge in 1650 scoured the law reports found that a judge in 1550 had ruled that hitting someone was battery and the least unwanted touch sufficed. So he ruled, that a slap was in fact battery. A judge in 1670 followed him. And so did one in 1700. And so on. This is a bit simplistic (actually very simplistic) but sufficient for our purposes.

I have to correct you there. Statute trumps common law is something that only really dated from 1689. Before that, as Lord Chief Justice Coke stated that any statute repugnant to common law would be void. In the US, after 1789 and the coming into force of the Constitution, it would eventually be held that statutes could not go against the Constitution., This incidentally came about through case law, it was not something which happened overnight.

I am a lawyer.

Torts are covered in the Restatement of the Law of Torts. Although the Restatement has not been enacted in toto, some statutes refer to it. Example:

I’d add that US common law is derived from English common law of 1776. Hence, trial by combat is still technically permitted (though I sincerely doubt any court in this nation would abide by that attempted practice). As no statute outlawed it, it remains a theoretical possibility.
THAT said, the constitution is the supreme law of the land, hence common law is below it.
In THAT instance, the aforementioned trial by combat to the death would be unconstitutional, as a court did not decide, under statute, to end a life. Hence, one would run afoul in federal (and state courts, where state constitutions reflect the same guarantees as the US constitution).

Of course, I DO recall another “common law” case from England, though I forget the year it was heard.
It seems that a man was attempting defense of battery upon his wife by claiming “the rule of thumb”, claiming common law. The bench considered the matter and plainly stated that it was unable to locate any such precedent and hence, he was guilty of battery.
Yet another reason to seek legal counsel when considering common or statutory law.

I suggest AK84 should consider that States are NOT the only legislature that can codify law, the Congress can as well, under somewhat limited conditions. :slight_smile:

Yes it is.

When the Supreme Court hands down a decision that is the COMMON law of the land, or simply the “Law of the land” per the Supremacy Clause of Article 6.

When any court hands down a decision it is the common law, this merely differentiates it from Statutory law.
Now, from a criminal law standpoint in Ohio, we have done away with common law offenses. This is NOT what the Courts have ruled though, but, as here:
CRIMES - PROCEDURE» Chapter 2901:
2901.03 Abrogation of common law offenses.
(A) No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code.

(B) An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty.

(C) This section does not affect any power of the general assembly under section 8 of Article II, Ohio Constitution, nor does it affect the power of a court to punish for contempt or to employ any sanction authorized by law to enforce an order, civil judgment, or decree.

Effective Date: 01-01-1974

So when an officer arrests you it is for a violation of law which has been ENACTED, either by the state, city, villiage, whatever. Then the court made decisional law, common law kicks in, and it can be vast in nature.

An example are the Rules of Evidence. The STATE passes them, but the courts decide on the admissability of that evidence introduced, not the legislature.

I do know from past research that Florida DOES recognize common law criminal offenses though. So states are different.

Remember the discussions of “theory” as used in science vs. popular usage to mean an untested hypothesis, or “myth” as the system whereby a culture attempts to explain it environment vs. “fairy tale”?

“Law” is like that. To a judge or lawyer, there is only one Law, which incorporates everything that a court takes cognizance of. What Congress or the state legislatures pass are statutes, codified as “statute law” – but what a lawyer looks at includes the constitution, treaties, statutes. executive orders, regulations, and case law. And judges “make law” by ruling in cases all the time.

For example, suppose Congress to have specified “Owing to the ease with which it may be abused as a recreational drug, the growing of hemp (Cannabis sativa) is hereby prohibited.” Now, suppose the Alaska Department of Agriculture, casting about for a cash crop that wprlks for that state’s short growing season, identifies dwarf hemp (Cannabis sibirica), which has very low THC levels and makes good textile hemp. Did Congress intend to prohibit the growing of C. sibirica as well? If someone atttempts to do it and is taken to court, a judge must decide Congress’ intent with regrd to the related species.