Just what is common law, exactly? What are its origins? Why do we have it?
~~Baloo
I’m sure a lawyer will be able to give a better explanation, but my understanding is that common law is the set of laws, or rules, that come from tradition. I think in the United States’ common law is derived from the legal traditions of English courts.
For example, lets say in the 1600’s the English courts, year after year, kept deciding what the definition of…I don’t know…debauchery was. Eventually, as a result of all these cases being decided similarly, it becomes “common law”, basically because that is the way it always has been done.
Common law is a body of legal principles and rules derived from ancient English tradition. It has spread to many former British colonies, including 49 of the 50 United States. Today, common law has been supplemented by judicial decisions over the years, which are binding precedents which litigants cite to a court. The term common law includes these precedents.
Common law is different than statutory law, which is the body of law enacted by legislatures.
What is it?
The body of law based on custom, past usage and past court decisions (as said above). This is as opposed to laws formally documented by a legislative body. However, even the latter will be influenced by common law as legislation is interpreted by courts with reference to common law principles and precedents.
What are the origins?
Probably British common law, supplemented and supplanted by US common law (as said above).
Why do we have it?
Because it’s not realistic to write every law from scratch at one time.
It should be noted that the “common” law is derived ultimately from the body of decisions made by English royal judges in the 12[sup]th[/sup] century – thus, that body of law that was “common” to all of England, as distinct from the local law declared by hundred and manorial courts.
The tradition is that the judges of Henry II (the first Angevin, or Plantagenet) so defined the common law of England that, in order to show that it incorporates a local practice, it is necessary to show that that practice existed since “time immemorial”, which is held to be before the coronation of Richard I, Henry’s immediate successor.
Black’s Law Dictionary:
As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is that body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Anglo-Saxon stock.
The “common law” really is that law of England, not only by tradition, but including legislation and court decisions, until we became independent. Usually, here in the USA, it is distinguished from statutory law or case law that has become the law of the land since Independence. We adopted all the law of England insofar as it was not repugnant to us or the newly formed Constitution. For example, common law marriages. All states have enacted statutes mandating how marriages can be consummated. However, uner the common law, there was no ceremony. Certain criteria had to exist before a couple was married: holding themselves out to the public as married and agreeing and intending to be married. Most states have abolished the common law marriage either explicitly in their statutes or by judicial decree.