Useful Notes / The Common Law

Describe The Common Law here.

Ah. Well. Glad you asked. But before you do, allow me to see if there is any binding precedent that would prevent this court from granting that motion…

The Common Law (Wikipedia article) is the system of law deriving from the traditional "common" laws of England. These developed over centuries, starting as the decisions of English judges based on the customs of the Anglo-Saxons, which the conquering Normans left mostly alone, albeit with some slow mixing in of their own principles and an insistence on speaking Latin or French in court; the essential principles of the "common law" as a way of resolving disputes in the way we understand it today is generally dated to the reign of Henry II, who took a deep personal interest in creating a uniform and easy-to-comprehend system of justice in his kingdom. However, this ignores the development of equity, an extremely important feature of the common law system, which was not fully cemented until the 15th or 16th century. That said, by the 17th century, the structure—if not the content—of the common law was more or less recognizable as the forerunner of today's system.

Although originally particular to England (to the point where not even Scotland fully followed it), the common law was spread around the world by The British Empire, and it is used in some form in 55 jurisdictions around the world. English-speaking tropers will be familiar with it, as it is the law used in the United Kingdom (except Scotland—kind of…^note For those interested, the Scottish legal system has adopted a number of academic writings as "institutional writings". These works are essentially details of the pre-existing legal codes and Scottish common law up until the point of their publication, but these texts do include some civil-law principles. The degree to which these texts are legal precedent, which texts exactly they are, and whether or not they can be added to is hotly debated. Scotland thus has a "hybrid system" of common and civil law, though the degree to which it is such a system is debated — some argue that it is a genuine hybrid, others that it is a common law system with some civil law elements. It should be noted that the Scottish common law is not actually the Common Law, but a separate body of Scots common law. ), the United States (except Louisiana—kind of^note Louisiana adopted a civil code modeled in part on the Napoleonic Code, but has necessarily incorporated some common-law elements on account of being a US state, and must apply some common-law procedures for constitutional reasons), Canada (except Quebec… sort of^note Quebec has its own civil code used for private law (e.g. contracts), but public law (including criminal law) uses common law. This has an impact at the federal level, since at least 3 of the 9 Supreme Court justices are required to have been Quebec judges or lawyers so they can handle cases involving Quebec civil law), Australia, New Zealand, Pakistan, Malaysia, Burma, Nigeria, Ireland, Israel (…for the most part^note Personal law-marriage, divorce, inheritance, etc., is handled according to the religion of the person in question (so Jews are governed by Halakha, Muslims by Sharia, Catholics by Catholic canon law, Orthodox Christians by Orthodox canon law, etc.)… unless the issue is marriage-related and you got married in a foreign country, in which case the law of that country is applied by Israeli judges as respects marital-status issues (e.g. divorce or child support, but not, for instance, inheritance-unless that depends on marital status as well… This incidentally leads to a lot of Israeli Jews getting married in (common-law) Cyprus, which isn't far away, if for whatever reason the Orthodox interpretation of Jewish law won't let them get married, most commonly where a Kohen (male-line male descendant of the old priestly line) intends to marry someone not traditionally considered suitable for marrying a Kohen. Confusing, we know, but this arrangement is common in many countries of the former Ottoman Empire.), most former British African colonies (excepting Sudan,^note Which mostly uses Islamic law. Egypt,^note Which uses French law with a dash of Islamic law for flavor. South Africa^note Which uses a mélange of Common Law and Roman-Dutch civil law-rather like Scotland, actually, although the Roman element in Scotland is native, not Dutch), the Philippines—sort of,^note U.S. colonisers introduced common law into an occupied Philippines in the early 1900s. That system, however, is grafted over a Spanish civil-law system (courtesy of the country's previous colonisers). The modern mix also includes Canon Law for the Catholic majority, and Sharia law for the Islamic minority, as well as some indigenous legal remedies, e.g. the "Writ of Kalikasan" (in English, "Writ of Environment")", and some international organizations.^note For instance, the European Patent Organization adopted Stare Decisis, which has the effect of making it almost common law in how it proceeds. Some academics have argued that, because of its somewhat spastic development, the European Union is inadvertently developing a hybrid system of common and civilian law. However, the largest common-law country is in fact India, which uses the common law in all cases except for "personal" or family law (where, like in Israel, the law of a person's religion applies; it can get quite confusing). In all, about two and a quarter billion people live in common law jurisdictions. Since this part of the wiki chiefly covers media from the English-speaking world, the common law will show up in a lot of media.

The Decision Must Stand: Stare Decisis and its funny effects

As much as the common law seems almost intuitive to people living in these countries, it has a number of odd features. Chief among these is the principle of stare decisis: Latin for "the decision must stand." This means that courts are required to follow the precedent established by previous judgments, the idea being that if two similar cases come before the court, they ought to be decided the same way both times.^note In Civil Law systems, previous judgement is only of persuasive value but is not binding; consider the difference between the common-law dictum stare decisis et non quieta movere ("Let decisions stand and do not disturb what is settled") and the civil-law dictum jurisprudence constante ("jurisprudence must be consistent/constant"); the Louisiana courts, being a civil-law system in an otherwise common-law country, have to constantly navigate between the two systems and have issued numerous rulings on the distinction. When you couple this with the fact that a common-law court of general jurisdiction is entitled to resolve any dispute between two or more parties so long as they can make an argument based on precedent, statute, and/or policy (as opposed to a civil-law system, where a dispute must be capable of being characterized as falling under a statutory rule), this means, as a practical matter, is that in common-law systems, judges effectively make laws: once an issue comes before a common-law court, similar cases must later be decided in the same way. Therefore, when a new situation arises each side generally tries to make the case that the new situation is similar or dissimilar to a situation in one old case or another; the analogy the court likes best stands for all future similar situations.^note Incidentally, this system is remarkably similar to the system used in Jewish and Islamic law. A few (slightly crazy) legal scholars, seeing certain similarities between the systems (and taking special note that the English started forming trusts shortly after The Crusades exposed them to the similar Islamic waqf) have hypothesized that this similarity is not accidental. This is, naturally, a topic that causes discussion to get very heated. These decisions are regarded as law within their jurisdictions.

Decisions in an area of the law traditionally left alone by legislatures like torts or contracts can be overturned by statute. Interpretations of statutes can also be overruled by amendment (although this can be tricky if the statute in question is a constitution, which may have high hurdles to amendment). A decision may also be overturned by a higher court. A court's ability to overturn its own precedents varies among jurisdictions; the House of Lords was strictly bound by its own precedents while it was the UK's court of last resort, for example, but the Supreme Court of the US and most supreme courts of the American states, as well the Canadian Supreme Court, are free to overturn old decisions based on statutory and constitutional law (particularly the latter), on the grounds that the previous decision might itself have been contrary to the proper interpretation of the statute/constitution. Decisions based entirely on common law (i.e. previous court decisions), however, cannot generally be reversed unless the existing legal principle is so obviously bad that it can no longer stand (most often, this happens by carving out exceptions or using alternative theories of law that eventually cover more situations than the rule, at which point the rule is declared to just be dead-what is termed in legal parlance as the exception "swallowing" the rule).^note The most notable case of this is probably the development of product liability law: at first Winterbottom v. Wright articulated the principle (called "privity of contract") that you couldn't sue the manufacturer of a product that injured you for something you didn't directly buy from them. Over time, a parallel area of law opened up: the action in negligence, by which courts imposed general common-law duties not to do certain things, a principle used in some cases to justify exceptions to privity: for instance, with "inherently dangerous products". Eventually, Judge Cardozo decided to just ditch the whole idea of the privity of contract in MacPherson v. Buick Motor Co., because the exceptions had already grown very broad and the rule had in effect become a mere fiction. Finally, the California Supreme Court decided (in Greenman v. Yuba Power Products) that "strict liability" applied in suits arising from defective products—basically "You screw up making the thing, you pay for the damage from the screwup," and other jurisdictions followed.

In the United States, the Federal Circuit Courts (i.e. the intermediate appeal level between Federal District Courts, where the actual trials take place, and the Supreme Court) can overturn precedent by going en banc. Basically, going en banc means you have to get over half the judges in the Circuit together to agree to rehear an appeal to determine if they are going to change the law of the jurisdiction.^note The Ninth Circuit, which contains California, has 28 Circuit Judges, so getting over half of them to agree to rehear a case and formulate a coherent opinion would be an exercise in herding cats. The rules of that Circuit mandate that only 11 judges are needed to go en banc; this is the most common rationale for dividing the Ninth Circuit into West Coast and inland western circuits; the West Coast one, frustratingly, would still have to have 21 judges. However, they can only do this once per issue; once a court has decided a case en banc, that decision stands unless the Supreme Court overrules the decision or overrules a bit of case law vital to the decision (or, of course, if the statute or constitution is changed through the political process).

The upshot of this system is that it allows legislatures to deliberately leave new laws vague and allow for the courts^note Or Administrative Agencies, but that's a whole other article. to map out the exact contours of the law. The classic example of a short statute with a highly developed (and oftentimes changing) body of case law is the Sherman Antitrust Act. The substantive Sherman Act is three fairly short sentences long,^{No, really.}  Section 1: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony." Section 2: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony...". The rest of Sections 1 and 2 merely sets the criminal penalties, and Section 3 clarifies "Yes, this applies in DC and the territories." but it has led to dozens of cases (a few of which in turn have led to statutes to "fix" an interpretation Congress didn't like, particularly an early interpretation that labor unions were illegal monopolies; these tend to be a bit longer, but you could still fit them on one or two sheets of paper) that together serve as the entire body of federal-level American competition law—a branch of law other countries (especially civil-law ones) typically have encoded in gigantic, complex codes. This sort of arrangement makes legal research in common-law countries a nightmare (until recently; the wonders of computers have fixed a lot of problems), but make the actual legal points a bit easier to understand: the law comes out of concrete cases and articulated in judicial opinions worded as essays understandable^note And sometimes even easy or enjoyable to read. to any reasonably intelligent and educated person, rather than being abstract principles articulated in obtuse and technical language.

Another effect is that since law is made by generalizing from cases to general rules, the limits of the law tend to be a lot clearer: a benefit for businessmen (no, not that kind of businessmen) who are afraid that their new moneymaking venture might skirt the law and get them into a needless lawsuit. Up until recently, murder wasn't even a statutory crime in the UK; this comes under the category of a "common law offence", where the legality of an action is set by court precedent and not statute. Common-law offenses also exist in the US: as recently as The '90s, Jack "Dr. Death" Kevorkian was charged with common-law murder, because Michigan does not have a statute defining murder—the murder statute merely sets penalties for different degrees of the crime. Maryland is the same. That said, all American courts are agreed that the power to create new crimes rests exclusively with the legislative branch.

Law and equity

On another note, one of the traditional things that separated the Common Law from other legal systems was the concept of equity. In the broad sense, equity is the element that "mitigates the rigor of the common law," i.e. keeps lawyers from becoming Rules Lawyers and engaging in systematic Loophole Abuse, and thus preventing judgments from wronging the wronged party or ignoring mitigating circumstances. In the narrow sense, "law" and "equity" eventually developed into two parallel legal systems in England—one based on the law created by the judges of the King, and one based on the system of the Court of Chancery, which was itself an outgrowth of a tradition of throwing oneself on the King's mercy. In time, the usual courts eventually settled on monetary damages as the usual manner of settling a dispute, while the Court of Chancery eventually settled on equitable remedies. At a certain point around the beginning of the 19th century, jurists in both Britain and the US realized that this system was absurd, and merged the two.^note The USA actually led the way on this one, with the Constitution specifying that the federal courts would hear all cases "in law and equity" under the law of the United States; however, several states retained the old distinction well after independence, and today two states (well, one and a half; see below) actually litigate law and equity in separate trial courts: Delaware has a separate Court of Chancery, while New Jersey has the Chancery Division of the Superior Court, which is one of three branches of the unified Superior Court, along with the Appellate Division (whose role is obvious) and the Law Division (covering civil suits for damages and criminal trials). The Law and Chancery Divisions are both divided into three Parts each—with Law into Civil (general lawsuits for damages), Special Civil (small claims and residential landlord-tenant), and Criminal Parts, and with Chancery into Family, Probate, and General Equity (a catchall mostly dealing with property and corporate issues) Parts. Judges get shunted between Law and Chancery fairly freely (although General Equity is considered a half-step up with a lighter caseload and more perks), but Appellate is a promotion. However, the rules developed by each of these court systems remain today (even if they aren't always observed), which can be quite confusing.

It gets more interesting is that cases in equity are tried separately from cases in law in one U.S. jurisdiction: Delaware.^note As noted in above, New Jersey respects a somewhat similar distinction, but not really. When someone sues a public corporation over how it is operated, like in shareholder lawsuits, it's usually chartered in Delaware, which means the case is heard by the Delaware Court of Chancery, not by a regular civil court. It is also used when someone is trying to get relief from government misconduct; in 1952, a parent named Belton and several others in New Castle County, sued the superintendent of Schools, Mr. Gebhart, because the school district would not allow their children, who were black, to attend a whites-only school, and required that they attend a vastly inferior black-only school. The Delaware Court of Chancery, in Belton v. Gebhart, found segregated schools to be unconstitutional, and the Delaware Supreme Court upheld the decision. This was one of the cases that was eventually consolidated into the 1954 Supreme Court case Brown v. Board of Education (of Topeka Kansas), and was the only one where the trial court found racial segregation of schools unconstitutional; all the other cases allowed it.

Trials as boxing matches: The Adversarial System and the Jury

Another peculiarity of the common law is its adversarial system: cases are presented as a sort of battle of words, in which one side "wins" and the other "loses" on the basis of the strength of their arguments; the judge retains a limited right to call and question witnesses, but mostly serves as referee between the lawyers. While this feature is by no means inseparable from the common-law system,^note For instance, American administrative adjudications often proceed in a quasi-inquisitorial manner, with the administrative law judge calling witnesses and asking questions; this system is most notably used in determining Social Security disability the two generally come together. This generally is the target of derision from continental European countries, such as France, who use the civil law and an inquisitorial system, in which judges are directed to "inquire" after the truth, calling and questioning witnesses themselves with occasional assistance from the lawyers. Arguments over the benefits and drawbacks of this feature are the sorts of things that get comparative law experts really worked up. People who live under common law often see its provisions as universal, which can lead to a shock when they're exposed to other legal systems (and see also Eagleland Osmosis, to which this applies).

Also associated with the adversarial system and the common law is the institution of the jury. This is not a complete distinction: juries exist in some civil-law, inquisitorial jurisdictions (e.g. France), and the British had a habit of not introducing juries to their African colonies, typically because the infrastructure was lacking but also because they wanted better control over the cases.^note Israel also does not have juries, for a similar reason, although given the population makeup of Mandate Palestine, you really can't blame the British for not wanting to make trials even more explosive. India also abolished the jury shortly after independence, after a particularly bizarre case. Mexico, which also included the adversarial system since the 2010s after years of internal pressure, also doesn't feature juries for a myriad of reasons, including the ones as Israel an India, as the adversarial system is only used on serious crimes like homicide, drug trafficking, terrorism, etc. That said, the jury fits in very nicely with the common/adversarial system. The adversarial system lends itself to making a distinction, more or less unique to the common law, between fact and law—that is to say, between "what happened" and "what do we do about it". The jury system is predicated on the idea that twelve random ordinary folks have just as much sense as a trained judge when it comes to weighing evidence about what happened in a case—more sense, in fact, because one judge might be biased, while getting 12 random people to agree on something is more likely to end up averaging out biases (and we have the math to prove it—developed by a Frenchman, no less—although again, France has both an inquisitorial system and juries). Questions of law—i.e. questions about which rules apply to what happened—are presented to the judge.

To be a bit clearer: A useful schematic is that "Did John Doe slap Jane Roe" and "Did Joe Bloggs put his signature on the document" are questions of fact; "Can Jane Roe sue John Doe for battery if he was only five years old when he slapped her"^Aside In some jurisdictions the answer is "yes", believe it or not. and "Did the fact that Joe Bloggs put his signature on the document make it a contract if it didn't say what he thought it said"^Aside AAAAAARGH! are questions of law. An exception to this general scheme is the bench trial, when the parties waive their right to a jury trial and have the judge settle questions of fact; this most usually occurs in certain types of lawsuit—most often fought by large corporations and (sometimes) government agencies, where the case rests primarily on highly technical points of law that would bore the pants off any jury not composed entirely of lawyers,^note Incidentally, you will never have a jury composed entirely of lawyers; in fact, lawyers, judges, and law professors very rarely end up on juries—except in Britain, but we'll get to that later—despite there being no legal bar to it (unless they're appearing in the case, of course!). The reason for this is that juries aren't entirely random; the lawyers for the parties are permitted to remove a certain number of jurors if they have a reason to do so—or sometimes, no reason. Since lawyers and other legal professionals know the law, they're more likely to be skeptical of any of the legal arguments made by the lawyers for the parties—which of course no good attorney wants. Britain is an exception, as the rules for removing a juror have to be very good—e.g. "this guy knows the defendant" or "this trial is for hate-crimes against a black woman, and this guy is on record as a misogynist who hates black people." (as John Mortimer said, "To escape jury duty in England, wear a bowler hat and carry a copy of the Telegraph."). Even the latter argument might not pass muster in the UK—which has itself caused controversy—so naturally "he's a lawyer and will understand my argument" doesn't even come close. and although most of the facts are agreed upon, one or two crucial points of fact are disputed.^note Very often, these facts are themselves extremely technical and boring in some other field, e.g. accountancy. This is one of the main reasons that although you can get a jury trial in tax case in the US (if you pay as assessed and then sue the IRS in federal District Court to return your overpayment), you probably really shouldn't—no jury could bring itself to care about your accounting shenanigans. That, and most jurors will say "We pay our taxes, and though annoying it's not that hard. Why should we help you get away with your elaborate scheme to avoid paying yours?" Most often, these trials aren't really "trials"-since the parties agree on the facts the case is decided on summary judgment (i.e. by the judge ruling on issues of law before the oral presentation of evidence begins). Moreover, you are not going to get anything other than a bench trial in a civil case unless you are either (a) in the United States (where the civil jury trial is a guaranteed right in the Constitution if your case is in federal court—although every state retains civil juries, they are not constitutionally bound to do so) or (b) in England or Wales^note Or, more technically, in "England and Wales": although politically different, England and Wales have a single legal system and are treated as a single jurisdiction. and pursuing an action in defamation (slander/libel). Finally, even in the US, if you're suing the government, the case will be a bench trial; the theory goes that the government has sovereign immunity from suit and is merely letting you sue them, and so can dictate the terms of the trial.^note In federal constitutional cases, this makes the trial judge an extremely powerful person, since the appeals courts must rely on his/her findings of fact; the findings of fact can influence the way the higher courts-including the Supreme Court-rule.

Statistical analysis of the two systems in criminal cases indicates that the adversarial system, with its usual jury, tends to ever so slightly favor acquitting the guilty, while the inquisitorial system ever so slightly favors convicting the innocent; however, the difference is almost negligible statistically, and of course it is virtually impossible to say which system is "better" in the case of civil lawsuits (and indeed, even in adversarial systems civil suits outside of tort are at least as likely to be bench trials as jury trials-or even more likely to be settled or adjudicated before trial on the pleadings or at summary judgment).

What's a case?

Back to other issues, the United States and Australian Constitutions actually forbid federal court judges from hearing cases that do not involve actual disputes. One of the biggest, most hotly contested areas of constitutional law (which, ironically, has been appealed to the Supreme Court on multiple occasions) is that of standing, which determines whether you even get in the federal courthouse doors. You can't just declare yourself an adversary and expect to be heard. This is mostly a problem because of the doctrine of Separation of Powers-basically, the idea that no branch of the government should have too much power. Making "advisory judgments" which don't resolve disputes is a duty relegated (perhaps arbitrarily) to the executive, meaning that courts are forbidden from engaging in it.

Note that this rule only applies to federal courts in America. American state courts can hear whatever types of cases their respective state constitutions allow. Australian state courts have no such luxury. Meanwhile, in Canada, provincial superior courts or courts of appeal may provide advisory opinions on any legal question (called reference questions in Canadian law) from the respective provincial government; the Supreme Court of Canada does the same for the federal government, and also hears appeals on provincial advisory opinions.

A global community of law

A final peculiarity of common law is its universality, especially in the area of tort.^note Delict in Scotland and some other jurisdictions. For instance, the obiter dicta^note "Other things said", i.e. "random notes that are interesting but not binding." of Chief Judge Benjamin Cardozo in the New York Court of Appeals^note New York is a very funny jurisdiction, as its "Supreme Court" is actually the name of its lower court system (due to being demoted over its corruption)-it hears trials and its Appellate Division is the intermediate appellate court. The Court of Appeals is the highest court in the state, and its members are called Judges. Cardozo was famous for his very well-written opinions in contract and tort during his time on it. case Ultramares Corporation v Touche, warning of creating "an indeterminate liability, in indeterminate amounts, to an indeterminate number of people" in negligence cases is widely quoted. A court case in a common law jurisdiction may cite cases from all over the common law world-it is not uncommon to see a British case citing decisions by the United States Supreme Court or even state courts,^note Indeed, it's more common to see British courts cite state supreme courts than the federal one, since the federal supreme court generally deals with US-specific constitutional and statute law rather than general common-law principles. Areas of law like contracts, torts, and property are state-law issues in the U.S. The federal courts (with one main exception and a few minor ones) cannot apply their own reasoning to them, and in most types of cases never need to; the exception is in "diversity" cases where the parties are suing each other in federal court because they're from different states, and then the federal court applies the applicable state law (a can of worms we will not open; ask an American law student about the Erie doctrine and prepare to be assaulted). The upshot is that the US Supreme Court very rarely rules directly on common-law issues. The main exception is in admiralty, the seagoing equivalent of tort and property law, and assigned to the "original jurisdiction" of the federal courts by the Constitution; here, the federal courts do address issues of common law directly, acting similarly to state courts in this area. Phew. And vice versa. Some cases have become so widespread that they have formed the basis of an area of law in a number of countries. On the other hand, no jurisdiction has to adopt another's rulings, so it gets pretty complicated.^note For instance, Canadian law has consistently rejected the doctrine of strict product liability (for which see above and below) articulated by the California Supreme Court and adopted not only in virtually all US jurisdictions but in Britain and other Commonwealth countries as well, insisting that suits against manufacturers for product defects show negligence.

The most famous of these internationally-cited cases is the Scottish case of Donohue v Stevenson (also known as "The Case of the Glasgow Snail"), which established the modern concept of negligence at common law, and is widely quoted around the world. Other such widespread cases are Jacob & Youngs, Inc. v. Kent (another Cardozo case, on how to assess damages for breach of contract), Wagon Mound No. 1 (an Australian appeal in admiralty to the Judicial Committee of the Privy Council on proximate cause/the scope of liability in negligence), Hadley v Baxendale (an English Court of Exchequer case by Baron Alderson on the limits of consequential damages in breach of contract; the principle is so important that even civil law countries have been influenced by it) and the paired cases Escola v. Coca Cola Bottling Co. of Fresno and Greenman v. Yuba Power Products (California Supreme Court cases authored by Justice Roger Traynor establishing the principle of strict product liability; the first was a concurrence and the second was him applying the concurrence's logic in a majority opinion twenty years later).

See also:

• American Courts
• British Courts

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The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Donoghue v Stevenson 1932 S.C. (H.L.) 31 at 44