Common Law

Common law is the judge-made law developed in England after the Norman Conquest. The judges rode in circuits to different locations where court would be held. After about 1080, they began to decide cases between the people—none of whom were English, but were rather Celtic remnants, Saxons, Angles, Danes, Norsemen, Britons, and others who would eventually meld together to become English.

Between 1100 and 1300, the traveling judges developed the law common to all of England. In London, where they would return after they had finished riding their circuits to hear cases, they had their permanent residences and would meet in inns. From these meetings were established permanent legal institutions that have continued until the present as the Inns of Court.

The decisions of the judges that developed the common law and its principles were made well before the establishment of English Parliament as a legislature, which would make statutory laws. The key feature of the English and eventually Anglo-Saxon common law system is that it is judge-made law. Over what is [Page 316]usually a long series of cases, the judges develop the law on many issues.

The common law, as it developed in England, was stable because the common law developed the principle of “like cases should be tried alike”; it therefore followed precedents set in previous cases, which is called the rule of stare decisis (Latin for “let the decision stand”). The common law was not very flexible—in order to bring a case for damages, actual harm had to occur. However, a tort suit for recovery from a harmful action is meaningless if the harm is irreparable. If an orchard of 50-year-old walnut trees was cut down, there is no remedy to replace them. In order to prevent irreparable harms and injustices that could occur under the common law, another form of judge-made law also arose, called equity law.

The common law was exported to English colonies, including the United States. After the American Revolutionary War, common law and equity law were incorporated into the American legal system as a part of the Constitution of the United States.

In the United States, England, and other Englishspeaking countries where the common law was received, great areas of life are still regulated by the common law. In contrast, on the European Continent and in many other countries, the civil law system has been adopted. This system uses a code of general rules that have been formulated by jurists and other specialists in the law. The Civil Code of France, which began as the Code Napoleon, is an example. It has its roots in the ancient Roman Law and its legal institutions. The legislatures of the countries that adopt civil law codes assign to judges the responsibility to apply the rules of the code to the facts of a case. A similar function is also found in common law countries, when judges apply statutory law. However, in the United States, the existence of judicial review as a legal doctrine means that all statutory and administrative rules and regulations are ultimately reviewed by judges in cases as if these were also facts in a case, rather than the controlling legal rules.

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