Common law

Law created by judicial precedent From Wikipedia, the free encyclopedia

Common law is the body of law primarily developed through judicial decisions rather than statutes.^[2]^[3] Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases.^[4] The presiding judge determines which precedents to apply in deciding each new case.^[4]

Common law is deeply rooted in the principle of stare decisis ("to stand by [things] decided"), where courts follow precedents established by previous decisions.^[5] When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.^[5] However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish a new precedent.^[6]^[7]

The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.^[8]^[9] It established a unified legal system, gradually supplanting the local folk courts and manorial courts.^[9]^[8] England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.^[10]^[11]^[12]^[13] Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.^[1]

Terminology and definitions

The term 'common law' has multiple distinct but related meanings. First, initially, following the Norman Conquest, the 'common law' referred to the law common to the King of England's courts, as distinct from the courts administered in local courts.^[8] Secondly, as such, term 'common law' later came to be synonymous with judge-made laws, as distinct from statutory law.^[14]^[15] Third, further, as the British Empire expanded, colonies that adopted the 'common law' judicial procedures and systems came to be known as 'common law' legal systems, as distinct from 'civil law' ones.^[10] Fourth, separately, during the late medieval period in England, a distinct set of equitable laws began to be administered by another court system, namely, the Court of Chancery. In common-law jurisdictions that have merged the two court systems, equity remains as a set of distinct legal rules, separate from the 'common law' historically administered by the common-law courts. Fifth, even after the abolition of the distinct equitable and legal court systems, England retains ecclesiastical courts that have legal jurisdiction over certain issues pertaining to religion, and 'common law' may be used to describe the laws distinct from those administered in these courts.^[2]

West's encyclopedia of American law defines common law as "The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts".^[16]

According to William Blackstone this unwritten law derived its authority from immemorial usage and "universal reception throughout the kingdom".^[17]^[18] While its precise meaning may have changed since Blackstone's time, in modern usage it is generally understood to mean law that is independent of statutes. This was repeated by the United States Supreme Court in Levy v. McCartee: "It is too plain for argument that the common law is here spoken of, in its appropriate sense, as the unwritten law of the land, independent of statutory enactments".^[18]

More specifically, in modern usage, this is understood to mean law that is made by judges, not the declaratory statutes of Blackstone's era.^[19]^[20] The term "judge made law" comes from Jeremy Bentham and the modern practice of adjudication as application of precedent derived from case law begins with Jeremy Bentham's attack on the legitimacy of the common law. The modern legal practice of applying case law as precedent made obsolete the declaratory theory of common law that prevailed in Blackstone's time.^[21]^[22]

Basic principles of common law

Common law adjudication

In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation.^[23] First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.^[24]

Common law evolves

Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".^[25] Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".^[26]

In contrast to common law incrementalism, the legislative process may be difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving a committee system, debate, a potential conference committee, voting, and approval by a head of state. Because of the involved process, many pieces must fall into place in order for it to be passed.^[27]

Decline of Latin maxims

Reliance on old maxims and rigid adherence to precedent, no matter how old or ill-considered, came under critical discussion in the late 19th century, starting in the United States. Oliver Wendell Holmes Jr. in his famous article, "The Path of the Law",^[28] commented, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Justice Holmes noted that study of maxims might be sufficient for "the man of the present", but "the man of the future is the man of statistics and the master of economics". In an 1880 lecture at Harvard, he wrote:^[29]

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the plain meaning rule to reach decisions.^[30] Statutes and written constitutions are generally understood to supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law,^[a] or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are contract law^[31] and the law of torts.^[32] There is a controversial legal maxim in American law that "Statutes in derogation of the common law ought to be narrowly construed". Henry Campbell Black once wrote that the canon "no longer has any foundation in reason". It is generally associated with the Lochner era.^[33] As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 (1993):^{[non-primary source needed]}

Just as longstanding is the principle that "[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. Astoria, 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); Milwaukee v. Illinois, 451 U. S. 304, 315 (1981).

As another example, the Supreme Court of the United States in 1877,^[34] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.

Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law", which includes judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.^[35]

Stability

The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency.^[36] As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right."^[37] This ability to predict gives more freedom to come close to the boundaries of the law.^[38]

In contrast, in jurisdictions with very weak respect for precedent,^[39] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides.^[36]

This is why^[40] the law of the State of New York is frequently chosen in commercial contracts, even when neither entity has extensive contacts with New York—and remarkably often even when neither party has contacts with the United States.^[40] Commercial contracts almost always include a "choice of law clause" to reduce uncertainty. Somewhat surprisingly, contracts throughout the world (for example, contracts involving parties in Japan, France and Germany, and from most of the other states of the United States) often choose the law of New York, even where the relationship of the parties and transaction to New York is quite attenuated. Because of its history as the United States' commercial center, New York common law has a depth and predictability not (yet) available in any other jurisdictions of the United States. Similarly, American corporations are often formed under Delaware corporate law, and American contracts relating to corporate law issues (merger and acquisitions of companies, rights of shareholders, and so on) include a Delaware choice of law clause, because of the deep body of law in Delaware on these issues.^[41] On the other hand, some other jurisdictions have sufficiently developed bodies of law so that parties have no real motivation to choose the law of a foreign jurisdiction (for example, England and Wales, and the state of California), but not yet so fully developed that parties with no relationship to the jurisdiction choose that law.^[42]

Legal reporting

In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as law reports and yearbooks.^[4]

After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.^[43] The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874.^{[citation needed]} West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States.^[44] Government publishers typically issue only decisions "in the raw", while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.^{[citation needed]}

There are regular, good quality law reports in France, but it is not a consistent practice in many of the existing civil law jurisdictions. In French-speaking colonial Africa there were no law reports and what little we know of those historical cases comes from publication in journals.^[45]

Stare decisis

In the United Kingdom, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify decisions of lower courts, being the final court of appeal for all civil law cases and criminal law cases in all jurisdictions except for Scotland, where the High Court of Justiciary has this power instead. The Supreme Court also has an appellate jurisdiction on questions of law relating to reserved matters such as devolution and human rights.^{[citation needed]} From 1966 to 2009, this power lay with the House of Lords, as it declared in the Practice Statement of 1966.^[46]

In the United States, most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels (most of the courts of appeal almost always sit in panels of three), the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc or by a higher court.^[47] Other courts, for example, the Court of Appeals for the Federal Circuit (formerly known as Court of Customs and Patent Appeals) and the US Supreme Court, always sit en banc, and thus the later decision controls.^{[citation needed]}

Evidence and litigation

Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, criminal proceedings proceed under an inquisitorial system in which an examining magistrate serves two roles by first developing the evidence and arguments for one side and then the other during the investigation phase.^[48]

In contrast, in an adversarial system, on issues of fact, the onus of framing the case rests on the parties, and judges generally decide the case presented to them, rather than acting as active investigators, or actively reframing the issues presented.^[49] On the other hand, on issues of law, common law courts regularly raise new issues (such as matters of jurisdiction or standing), perform independent research, and reformulate the legal grounds on which to analyze the facts presented to them. The United States Supreme Court, in particular, regularly decides based on issues raised only in amicus briefs from non-parties.^[50]^[51]

Separation of powers

Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch. In contrast, civil law systems are typically more tolerant of allowing individual officials to exercise both powers. One example of this contrast is the difference between the two systems in allocation of responsibility between prosecutor and adjudicator.^[52]^[48]

History

Origins

The common law—so named because it was common to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.^[8] Prior to the Norman Conquest, much of England's legal business took place in the local folk courts of its various shires and hundreds.^[8] A variety of other individual courts also existed across the land: urban boroughs and merchant fairs held their own courts, and large landholders also held their own manorial and seigniorial courts as needed.^[8] The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs – all of which were incorporated into the Norman common law – is still a subject of much discussion. Additionally, the Catholic Church operated its own court system that adjudicated issues of canon law.^[8]

The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center).^[53]^[54]

The doctrine of precedent developed during the 12th and 13th centuries,^[55] as the collective judicial decisions that were based in tradition, custom and precedent.^[56]

Medieval English common law

King Henry II, the establisher of common law,^[57]^[58] had as his object the preservation of public order, but providing law and order was also extremely profitable – cases on forest use as well as fines and forfeitures generated large windfalls for the government.^[59]^[60] At the time, royal government centered on the Curia Regis (king's court), the body of aristocrats and prelates who assisted in the administration of the realm and the ancestor of Parliament, the Star Chamber, and Privy Council, but it was Henry II who developed the practice of sending judges from his Curia Regis to hear the various disputes throughout the country, and return to the court thereafter. As the administration of the eyres (a Norman French word for judicial circuit, originating from Latin iter) became more widespread, a law emerged that was 'common' to all of England, hence known as the 'common law'.^[60]^[61]^[62]

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. In England, judges have devised a number of rules as to how to deal with precedent decisions. The early development of case-law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England and led to the yearly compilations of court cases known as Year Books, of which the first extant was published in 1268, the same year that Bracton died.^[63]

Influence of Roman law

In the 12th and 13th centuries, countries in continental Europe began to receive the doctrines, principles, and practices of the ancient Roman law into their legal systems, such as codification based on the Roman law civil codes, such as the Corpus Juris Civilis.^[64]^[65] However, by that time, the English already had the common law system in place, so that common law jurisdictions often differ significantly from civil law ones in terms of judicial reasoning and the sources of law.^[66]^[67]

By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.^[68] However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.^[69] One of the first and throughout its history one of the most significant treatises of the common law, Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's Institutes.^[70] The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's Commentaries on the Laws of England,^[71] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.^[72] As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.^[73]

Early modern era

The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke, and was universal among lawyers and judges from the earliest times to the mid-19th century.^[74] As Sir Edward Coke (1552–1634) put it in the preface to the eighth volume of his Reports (1600–1615), "the grounds of our common laws" were "beyond the memorie or register of any beginning".^[75] However, for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law.^[74]

British Raj (19th century – 1948)

The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj.^{[citation needed]}

Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The Arthashastra, dating from 400 BCE and the Manusmriti, from 100 CE, were influential treatises in India, texts that were considered authoritative legal guidance.^[76] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.^[77] Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition.^[78] Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character.^[79]

When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law.^[80] After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act 1858 to this effect, which set up the structure of British government in India.^[81] It established in Britain the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.^[82]^{[verification needed]}

The United States (c. 17th century – 1776)

After Erie v. Tompkins, 304 U.S. 64, 78 (1938) overruled Joseph Storey's decision in Swift v. Tyson, the federal common law was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas that may not be the traditional jurisdiction of state law.^[83] Later courts have limited Erie slightly, to create a few situations where United States federal courts are permitted to create federal common law rules without express statutory authority, for example, where a federal rule of decision is necessary to protect uniquely federal interests, such as foreign affairs, or financial instruments issued by the federal government.^[b] Except on Constitutional issues, and some procedural issues, Congress is free to legislatively overrule federal courts' common law.^[84]

Post-1938, federal courts deciding issues that arise under state law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.^[c] Outside diversity jurisdiction and when there is no federal statute,^[d] post-Erie federal courts have continued to create causes of action.^[86] Justice Lewis Powell strongly objected to this practice in an influential dissent for the case Cannon v. University of Chicago.^[30]

1870 through 20th century, and the procedural merger of law and equity

As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages (at common law (as opposed to equity)) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other.^[87]

In England, courts of law (as opposed to equity) were merged with courts of equity by the Judicature Acts of 1873 and 1875, with equity prevailing in case of conflict.^[88]

In the United States, parallel systems of law (providing money damages, with cases heard by a jury upon either party's request) and equity (fashioning a remedy to fit the situation, including injunctive relief, heard by a judge) survived well into the 20th century. The United States federal courts procedurally separated law and equity: the same judges could hear either kind of case, but a given case could only pursue causes in law or in equity, and the two kinds of cases proceeded under different procedural rules. This became problematic when a given case required both money damages and injunctive relief. In 1937, the new Federal Rules of Civil Procedure combined law and equity into one form of action, the "civil action". Fed.R.Civ.P. 2. The distinction survives to the extent that issues that were "common law (as opposed to equity)" as of 1791 (the date of adoption of the Seventh Amendment) are still subject to the right of either party to request a jury, and "equity" issues are decided by a judge.^[89]

Common law pleading and its abolition in the early 20th century

For centuries, through to the 19th century, the common law acknowledged only specific forms of action, and required very careful drafting of the opening pleading (called a writ) to slot into exactly one of them: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case (or trespass on the case), and ejectment.^[90]

One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.^[91] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.^[92] This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.^[93]

Contemporary United Kingdom common law

Scotland is often said to use the civil law system, but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of its own common law long predating the Treaty of Union with England in 1707 (see Legal institutions of Scotland in the High Middle Ages), founded on the customary laws of the tribes residing there. Historically, Scottish common law differed in that the use of precedent was subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent.^[94]

Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals. The highest court of appeal in civil cases brought in Scotland is now the Supreme Court of the United Kingdom (before October 2009, final appellate jurisdiction lay with the House of Lords).^[95]

Jurisprudence and theory

Early English legal scholars and theorists believed that the common law was a reflection of the ancient Anglo-Saxon customs and norms that have existed since time immemorial, with judges not merely establishing or developing the law but actually discovering or declaring these 'unwritten rules' (lex non scripta).^[96]^[97]^[16] The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke,^[98]^[99]^[18] and was universal among lawyers and judges from the earliest times to the mid-19th century.^[74]

However, contemporary lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the history of the origin and growth of the law,^[74] nor is it a workable or desirable doctrine.^[18]^[19] The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.^[74] By the twentieth century, legal scholars, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer, generally disavowed the historical theory of the common law, choosing instead to view the law in a positivistic or realist way, as the binding ratio decidendi of case law.^[74]^[100]^[101]

Roscoe Pound has commented that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law.^[102] Pound argues that judges, particularly where statutes and precedent are silent or ambiguous on an issue, perform an essentially legislative function,^[19] a view assented to by Oliver Wendell Holmes.^[103] Nonetheless, as legislation and case law become more comprehensive, courts have a narrower room to operate within the bounds of statutory interpretation.^[30]

Financial and economic research

Owing to the nature of precedent in common law, the commercial strengths of common law systems include consistency, certainty and finality.^[104] Common-law judges, especially from the law and economics movement, also can exercise broader adjudicative discretion in ensuring economically efficient and commercially pragmatic outcomes.^[105]^[106]^[107] Research into law and finance has found that common law systems contribute significantly to the development of robust commercial systems and overall economic development.^[108] As such, common law jurisdictions, such as England and Wales, California,^[109] Delaware,^[110] New York City, Hong Kong, and Singapore, are often chosen as the forum of litigation as well as the choice of law used in commercial contracts, even when none of the parties or the agreement itself has any relation to these jurisdictions.^[111]^[40]

Reception, influence and development of English law

Former British colonies that have become independent vary in their reliance upon and reception of English law.^{[citation needed]} The majority of jurisdictions have implemented reception statutes that receive the historical English law, prior to independence, into their legal systems,^[112] in order to preserve legal continuity and retain the ability to draw upon an extensive and predictable body of law.^{[citation needed]} Post-independence jurisdictions, with the notable exception of the United States, also generally allowed litigants to appeal to the Privy Council of the United Kingdom as an apex court, but most of these jurisdictions have abolished such rights in favour of a national supreme court.^{[citation needed]}

The need to balance legal continuity and autochthonous independence has figured particularly in debates in the extent to which English law should remain recognised or influential in a new jurisdiction, including the question of whether rights of appeal to the Privy Council should be abolished.^{[citation needed]} Following the American Revolution, Thomas Jefferson, argued that the common law was a threat to the nation and that a civil code would be preferable as judges were not subject to the democratic political process.^[43]^{[better source needed]}

For several decades after independence, contemporaneous English law remained highly influential on American common law. For example, the decision in Byrne v Boadle (1863), which first applied the res ipsa loquitur doctrine, was followed in U.S. courts.^{[citation needed]} At the same time, the autochthonous development of common law in other jurisdictions, particularly Australia, Canada, Hong Kong, and Singapore, has also influenced the development of English law.^[113]^{[better source needed]}

Convergence of common law and civil law

Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.^[114]^(p5) In the United States, the Uniform Commercial Code (UCC) is an example of a codified framework governing various aspects of commercial law.^[114]^(p6) Widely regarded as one of the most significant developments in American law, the UCC has been enacted, with some local variations, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.^[115]^[116]

An example of convergence from the other direction is shown in the 1982 decision Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (ECLI:EU:C:1982:335), in which the European Court of Justice held that questions it has already answered need not be resubmitted. This showed how a historically distinctly common law principle is used by a court composed of judges (at that time) of essentially civil law jurisdiction.

Mechanisms

In England, judges have devised a number of rules as to how to deal with precedent decisions.^[117]

International reception and influence

Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.^[1] The common law constitutes the basis of the legal systems of:^{[citation needed]}

Australia
Bangladesh
Belize
Bhutan
Brunei
Canada (with the exception of Quebec)^[118]^[119]
The Caribbean jurisdictions of Antigua and Barbuda, Barbados, Bahamas, Dominica, Grenada, Jamaica, St Lucia (mixed), St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago
Cyprus
Fiji
Ghana^[120]^{[ISBN missing]}^[121]
Guyana (mixed)
Hong Kong
India^[122]
Ireland
Israel^{[citation needed]}
Kenya
Kiribati
Malaysia
Malta
Myanmar
Nauru
New Zealand
Nicaragua^[123]^[124]
Nigeria
Pakistan^[125]
Philippines
Singapore
South Africa (mixed)
Sri Lanka (mixed)
Tuvalu
United Kingdom (mixed in Scotland)
United States (mixed in Louisiana and Puerto Rico)

References

[1]
"Juriglobe". www.juriglobe.ca. Archived from the original on 2 November 2024. Retrieved 28 November 2024.
[2]
Garner, Bryan A. (2001) [1995]. A Dictionary of Modern Legal Usage (2nd ed.). New York: Oxford University Press. p. 177. ISBN 9780195077698. common law. A. As Noun—in Broad Contrasts. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed originally in England, common law is contrasted by comparative jurists to civil law, q.v. Second, 'with the development of equity and equitable rights and remedies, common law and equitable courts, procedure, rights, remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity' (OCL). Third, the term is similarly distinguished from ecclesiastical law. Fourth, it is occasionally used to denote the law common to the country as a whole-as distinguished from law that has only local applications. Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law <statutes in derogation of the common law are to be strictly construed>.
[3]
"common law". LII / Legal Information Institute. Retrieved 27 November 2024. Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law.
[4]
"The Common Law and Civil Law Traditions" (PDF). Berkeley Law. 2016. Archived (PDF) from the original on 22 November 2024. Retrieved 24 November 2024. Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.
[5]
"stare decisis". LII / Legal Information Institute. Archived from the original on 24 November 2024. Retrieved 27 November 2024. Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means "to stand by things decided" in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority.
[6]
"Marbury v. Madison, 5 U.S. 137 (1803)". Justia Law. Retrieved 27 November 2024. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
[7]
"case of first impression". LII / Legal Information Institute. Retrieved 27 November 2024. A case of first impression is a case that presents a legal issue that has never been decided by the governing jurisdiction. ... A case of first impression lacks controlling precedent. In other words, a court deciding a case of first impression cannot rely on prior decisions nor is the court bound by stare decisis. To adopt the most persuasive rule of law, courts will look to various sources for guidance.
[8]
Langbein, Lerner & Smith (2009), p. 4.
[9]
"Common law | Definition, Origins, Development, & Examples | Britannica". www.britannica.com. 26 November 2024. Retrieved 28 November 2024.
[10]
Black's Law Dictionary – Common law (10th ed.). 2014. p. 334. 2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-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...
[11]
Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 9780195077698. "common law" is contrasted by comparative jurists to civil law.
[12]
Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law" Archived 25 May 2017 at Archive-It, 8 December 2008:, retrieved on 7 November 2009. "2. The system of law originated and developed in England and based on prior court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than codified written law. Contrast: CIVIL LAW."
[13]
Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
[14]
"common law". LII / Legal Information Institute. Archived from the original on 16 February 2025. Retrieved 27 November 2024. Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law.
[15]
Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
[16]
Lehman, Jeffrey; Phelps, Shirelle (2005), West's encyclopedia of American law, Volume 3 (2nd ed.), Detroit: Thomson/Gale, p. 30, ISBN 9780787663704
[17]
Sir William Blackstone (1723–1780) in his Commentaries on the Laws of England (1765–1769).
[18]
Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p. 15876.
[19]
Pound, Roscoe (1907). "Spurious Interpretation". Columbia Law Review. 7 (6): 381. doi:10.2307/1109940. JSTOR 1109940. The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed ... the object of spurious interpretation is to make, unmake, or remake, and not merely to discover ... it is essentially a legislative, not a judicial process, made necessary in formative periods by the paucity of principles, feebleness of legislation and rigidity of rules characteristic of archaic law. So long as law is regarded as sacred, or for any reason as incapable of alteration, such a process is necessary for growth, but surviving into periods of legislation, it becomes a source of confusion.
[20]
Sir William Blackstone (1723–1780), Commentaries on the Laws of England (1765–1769): "Statutes are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disreputable; remedial when made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.
[21]
Gearey, Adam; Morrison, Wayne; Jago, Robert (2013). The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Taylor & Francis. p. 115.
[22]
Postema, Gerald. Bentham and the Common Law Tradition. doi:10.1093/oso/9780198793052.003.0006.
[23]
Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007).
[24]
e.g., Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office)
[25]
Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).
[26]
Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
[27]
"The Legislative Process". www.geron.org. Retrieved 12 June 2024.
[28]
Holmes, Oliver Wendell Jr. (1897). "The Path of the Law". Harvard Law Review. 10 (8): 457–478. doi:10.2307/1322028. JSTOR 1322028.
[29]
The Common Law "O. W. Holmes, Jr., The Common Law". 1882.
[30]
Popkin, William D. (1999). Statutes in Court: The History and Theory of Statutory Interpretation. Duke University Press. p. 254. There is an old principle of law that every right has a remedy, which comes from an age when statutes often did little more than identify a legal wrong, leaving it to the common law to supply a remedy. But the courts extended this approach to infer a private cause of action even when the statute already provided specific (often administrative) remedies. The Court has recently retreated from an expansive inference of private remedies, first adopting a four part test which imposed some limits on inferring a private cause of action, and then shifting to legislative intent test...Justice Lewis Powell put it most forthrightly in his dissent in Cannon v. University of Chicago where he stated that the Article III judicial power did not include the power to imply private causes of action from silent statutes.
[31]
E. Allen Farnsworth, Farnsworth on Contracts, § 1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions [remain] the dominant primary source of contract law.")
[32]
Stuart Speiser, et al., The American Law of Torts, §§ 1:2, 1:5, and 1:6, Thomson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance [of courts] to overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).
[33]
Popkin, William (1999). Statutes in Court: The History and Theory of Statutory Interpretation. Duke University Press. p. 97.
[34]
Meister v. Moore, 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")
[35]
"Common Law". Atlas of Public Management. Retrieved 2 February 2024.
[36]
"LawGovPol, Common law: advantages and disadvantages". Archived from the original on 21 July 2024. Retrieved 28 January 2021.
[37]
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
[38]
See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law Archived 2007-05-02 at the Wayback Machine" (2006).
[39]
For example, the U.S. Patent Office issues very few of its decisions in precedential form. Kate Gaudry & Thomas Franklin, "Only one in 20,631 ex parte appeals designated precedential by PTAB", IPWatchdog (27 September 2015). Various lower tribunals in the Patent Office give very weak respect to earlier superior decisions.
[40]
Theodore Eisenberg & Geoffrey P. Miller (2008). The Flight to New York: An Empirical Study of Choice of Law and Choice of Forum Clauses in Publicly-Held Companies' Contracts. New York University Law and Economics Working Papers. Paper 124, Archived 1 April 2011 at the Wayback Machine (based on a survey of 2882 contracts, "New York law plays a role for major corporate contracts similar to the role Delaware law plays in the limited setting of corporate governance disputes. ... New York's dominance is striking. It is the choice of law in approximately 46 percent of contracts", and if merger contracts excluded, over half).
[41]
Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract—[merger] trust agreements. ... The dominance of Delaware for this specialized type of contract is apparently due to the advantages and flexibility which Delaware's business trust statute.")
[42]
Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
[43]
Social Law Library, Common Law or Civil Code?, Boston, Massachusetts.
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https://scallnet.org/wp-content/uploads/2018/10/Chapter-12-Major-Legal-Publishers.pdf Archived 22 July 2026 at the Wayback Machine Caulfield, E., Southern California Association of Law Libraries. Committee on Public Access to Legal Information. (2022). "Locating the Law : a Handbook for Non-law Librarians". AALL Legal Website of the Month. 20. Archived from the original on 22 July 2026. Retrieved 22 July 2026.
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Opoku, Kwame (1971). "An Introduction to Law in French-Speaking Africa". The Journal of Modern African Studies. 9 (2). doi:10.1017/S0022278X00025064.
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83 Cr App R 191, 73 Cr App R 266.
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E.g., South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc in relevant part) (explaining order of precedent binding on the United States Court of Appeals for the Federal Circuit); Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc) (after the Eleventh Circuit was split off from the Fifth Circuit, adopting precedent of Fifth Circuit as binding until overruled by the Eleventh Circuit en banc: "The [pre-split] Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule."); Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office).
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LangstoT. "Types of Legal System: Adversarial v. Investigatory Trial Systems". compass.port.ac.uk. Archived from the original on 25 November 2017. Retrieved 17 November 2017.
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United States v. Sineneng-Smith, 590 U.S. 371 (2020).
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Frost, Amanda (2009). "The Limits of Advocacy". Duke Law Journal. 59 (3): 447–518. Archived from the original on 13 April 2024. Retrieved 7 May 2020.
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See Greenlaw v. United States and United States v. Sineneng-Smith.
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"Inquisitorial And Adversarial System Of Law". lawteacher.net. Archived from the original on 18 November 2017. Retrieved 17 November 2017.
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Documents from Medieval and Early Modern England from the National Archives in London. Archived 6 March 2016 at the Wayback Machine Publications of the Selden Society include a Year Books series and other volumes transcribing and translating the original manuscripts of early common law cases and law reports, each volume having its editor's scholarly introduction. Publications of the Selden Society.
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One history of the law before the Norman Conquest is Pollock and Maitland, The History of English Law before the Time of Edward I.
[55]
Jeffery, Clarence Ray (1957). "The Development of Crime in Early English Society". Journal of Criminal Law, Criminology, and Police Science. 47 (6): 647–666. doi:10.2307/1140057. JSTOR 1140057.
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Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law.
[57]
Langbein, John. "Historical Foundations of the Law of Evidence" (PDF). Columbia Law Review: 1170.
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"The veiled history of the English jury trial". Harvard Law School.
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Croniques de London (Camden Soc., 1844), pp. 28–9.
[60]
Baker, John (21 March 2019). Introduction to English Legal History (5 ed.). Oxford University Press. doi:10.1093/oso/9780198812609.001.0001. ISBN 978-0-19-881260-9.
[61]
Chronica Rogeri de Houedene (RS, 1871), IV, p. 62.
[62]
Annales Monastici (RS, 1864–69), III, p. 135.
[63]
T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp. 260–261.
[64]
"Description and History of Common Law". Archived from the original on 28 February 2017. Retrieved 14 March 2017.
[65]
"The Common Law and Civil Law Traditions". Archived from the original on 22 April 2016. Retrieved 11 June 2016.
[66]
Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
[67]
E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
[68]
E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
[69]
E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
[70]
E.g., George E. Woodbine (ed.), Samuel E. Thorne (transl.), Bracton on the Laws and Customs of England, Vol. I (Introduction) 46 (1968); Carl Güterbock, Bracton and his Relation to the Roman Law 35–38 (1866).
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Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24.
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Peter Stein, Continental Influences on English Legal thought, 1600–1900, in Peter Stein, The Character and Influence of the Roman Civil Law 223 et seq. (1988).
[73]
See generally Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007.
[74]
Carpenter, Charles E. (1917). "Court Decisions and the Common Law". Columbia Law Review. 17 (7): 593–607. doi:10.2307/1112172. JSTOR 1112172. (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.")
[75]
James R. Stoner, Jr., Common Law and the Law of Reason (Stoner is a professor of political science, not law).
[76]
Glenn 2000, p. 255.
[77]
Glenn 2000, p. 276.
[78]
Alexander, C.H. (July 1952). "International Law in India". The International and Comparative Law Quarterly. 1 (3): 289–300. doi:10.1093/iclqaj/1.Pt3.289. ISSN 0020-5893.
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Viswanatha, S.T., International Law in Ancient India, 1925.
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Glenn 2000, p. 273.
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"Official, India". World Digital Library. 1890–1923. Archived from the original on 19 December 2019. Retrieved 30 May 2013.
[82]
Jain 2006, p. 2.
[83]
Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or 'general,' be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.").
[84]
City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating the Religious Freedom Restoration Act, in which Congress had attempted to redefine the court's jurisdiction to decide constitutional issues); Milwaukee v. Illinois, 451 U.S. 304 (1981).
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D'Oench, Duhme & Co. v. FDIC, 315 US 447, 472 (1942), Jackson, J., concurring. Cited in Bradley, Curtis A. International Law in the U.S. Legal System. United Kingdom, Oxford University Press, 2015, 157
[86]
Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation. Oxford University Press. 2021. p. 134.
[87]
Salmond 1907, p. 34.
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Lobban, Michael "Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery, Part II | year=2004 | work=Law and History Review, 2004 (University of Illinois Press). ISSN 0738-2480.
[89]
E.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("[W]e [the U.S. Supreme Court] have understood that the right of trial by jury thus preserved is the right which existed under the English common law (as opposed to equity) when the Amendment was adopted. In keeping with our longstanding adherence to this 'historical test', we ask, first, whether we are dealing with a cause of action that either was tried at law (as opposed to equity) at the time of the founding or is at least analogous to one that was. If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." (citations and quotations omitted, holding that interpretation of the scope of a patent had no analogy in 1790, and is thus a question to be decided by a judge, not a jury).
[90]
F. W. Maitland, The Forms of Action at Common Law, 1909, Lecture I, Archived 22 June 2016 at the Wayback Machine or John Jay McKelvey, Principles of Common Law Pleading (1894) or Ames, Chitty, Stephen, Thayer and other writers named in the preface of Perry's Common-law Pleading: its history and principles (Boston, 1897) or Koffler and Reppy, 1969, Handbook of Common Law Pleading Archived 19 August 2016 at the Wayback Machine.
[91]
The remainder of the "common law" discussed in the rest of the article remained intact; all that was abolished were the highly technical requirements for language of the paper provided by the plaintiff to the defendant to initiate a case.
[92]
E.g., Federal Rule of Civil Procedure, Rule 4, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief".
[93]
E.g., Federal Rule of Civil Procedure, Rule 1, civil procedure rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding".
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Stair Memorial Encyclopedia.
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Court, The Supreme. "Role of The Supreme Court – The Supreme Court". www.supremecourt.uk. Archived from the original on 1 January 2017. Retrieved 4 October 2016.
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Leiter, B (2016), "Philosophy of law - Realism, Jurisprudence, Legal Theory", Encyclopedia Britannica, archived from the original on 30 June 2026, retrieved 27 June 2026
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Black's Law Dictionary – Common law (10th ed.). 2014. p. 334. the common law comprises the body of those principles and rules of action ... which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.
[98]
Sir William Blackstone (1723–1780), Commentaries on the Laws of England (1765–1769): "Statutes are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disreputable; remedial when made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever.
[99]
James R. Stoner, Jr., Common Law and the Law of Reason Archived 10 July 2021 at the Wayback Machine (Stoner Archived 10 July 2021 at the Wayback Machine is a professor of political science, not law).
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Gearey, Adam; Morrison, Wayne; Jago, Robert (2013). The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Taylor & Francis. p. 115.
[101]
Postema, Gerald. Bentham and the Common Law Tradition. doi:10.1093/oso/9780198793052.003.0006. Archived from the original on 7 February 2024. Retrieved 7 February 2024.
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Pound, Roscoe (1941). "What of Stare Decisis?". Fordham Law Review. 10 (1).
[103]
Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).
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Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
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Judicial Discretion in the Civil Law Archived 22 July 2024 at the Wayback Machine In the common talk among lawyers, it has even been said that in the Civil Law system legislators are almost like gods, and judges not even men."
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"The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems". Indiana Journal of Global Legal Studies. Archived from the original on 10 May 2024. Retrieved 10 May 2024.
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"In some cases, according to some expert observers, important principles were not included in the legislation because the drafters, not having any experience in commerce, could not appreciate the importance of the principles and the advisors could not convince them of the necessity of certain principles. For example, under legislation adopted, boards of directors can be held criminally and civilly liable if the corporation does not turn a profit, not exactly a great incentive to risk taking. It illustrates the difficulty of changing societal norms. At the same time, in deciding commercial cases, the judges are not to examine the prevailing practices regarding what agreements mean within the trade at the time the contract was entered into, a fundamental concept in western commerce and judicial practice." Rule of Law Assistance Impact Assessment: Armenia
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Porta, Rafael La; Lopez‐de‐Silanes, Florencio; Shleifer, Andrei; Vishny, Robert W. (1998). "Law and Finance". Journal of Political Economy. 106 (6): 1113–1155. doi:10.1086/250042. ISSN 0022-3808. Archived from the original on 11 July 2025. Retrieved 30 June 2026.
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Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
[110]
Eisenberg & Miller at 19–20 (Delaware is chosen in about 15% of contracts, "Delaware dominates for one type of contract—[merger] trust agreements. ... The dominance of Delaware for this specialized type of contract is apparently due to the advantages and flexibility which Delaware's business trust statute.")
[111]
See, e.g., Yeo Tiong Min, "A Note on Some Differences in English Law, New York Law, and Singapore Law Archived 2007-05-02 at the Wayback Machine" (2006).
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Edited Thinking like a lawyer: an introduction to legal reasoning^{[permanent dead link]} (Westview Press, 1996), p. 10.
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England and Wales Court of Appeal (Civil Division), Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37, paragraph 33, delivered on 4 February 2009, accessed on 6 February 2026. Archived 19 December 2025 at the Wayback Machine
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Funken, Katja (July 2003). "The Best of Both Worlds - The Trend Towards Convergence of the Civil Law and the Common Law System". SSRN. SSRN 476461. Retrieved 29 November 2024.
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"Uniform Commercial Code". www.uniformlaws.org. Retrieved 29 November 2024. The Uniform Commercial Code (UCC) is a comprehensive set of laws governing all commercial transactions in the United States. It is not a federal law, but a uniformly adopted state law. Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called 'the backbone of American commerce.'
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"Uniform Commercial Code (UCC) | Duke University School of Law". law.duke.edu. Archived from the original on 26 July 2024. Retrieved 29 November 2024. The Uniform Commercial Code (UCC), a comprehensive code addressing most aspects of commercial law, is generally viewed as one of the most important developments in American law. The UCC text and draft revisions are written by experts in commercial law and submitted as drafts for approval to the National Conference of Commissioners on Uniform State Laws (referred to as the Uniform Law Commissioners), in collaboration with the American Law Institute. The Commissioners are all attorneys, qualified to practice law, including state and federal judges, legislators and law professors from throughout the United States and its territories. These quasi-public organizations meet and decide whether to endorse the drafts or to send them back to the experts for revision. The revision process may result in several different revisions of the original draft. Once a draft is endorsed, the Uniform Law Commissioners recommend that the states adopt these rules. The UCC is a model code, so it does not have legal effect in a jurisdiction unless UCC provisions are enacted by the individual state legislatures as statutes. Currently, the UCC (in whole or in part) has been enacted, with some local variation, in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
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T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp. 260–261.
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Constitution Act, 1867 Archived 15 April 2026 at the Wayback Machine, s. 91(10), (18).
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According to Article 11(2) of Ghana's Constitution, the common law of Ghana shall comprise the rule of law generally known as the common law, the rules generally known as the doctrine of equity and the rules of customary law, including those determined by the Superior Court of Judicature.
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