Common Law

A nation’s legal system is generally based on one of two types of law: code law or common law. Code law is law that has been promulgated by some authority or enacted by a legislature to be used by judges in deciding cases. One country that uses code law is France, which has adopted the Code Napoleon—a civil law code written by a commission of jurists and promulgated in 1804. This code became influential in many European countries during Napoleon’s rule over the French Empire in the early nineteenth century. France’s influence in Louisiana, especially before the Louisiana Purchase in 1803, has made it the only state in the United States that relies on code law.

The type of law that influenced the thirteen original states of the United States and the Constitution drafted in 1787 was England’s common law. Even today the Anglo-American legal system and the laws of many of Great Britain’s other former colonies, such as Canada and New Zealand, are rooted in the rules and principles of common law. Rather than having been enacted by a legislature like code law (sometimes called statute law), English common law has been created over centuries by judges’ decisions in cases brought before them.

Common law has come to be relied on as authoritative because of the principles of stare decisis (“to stand by decided cases”) and precedent, which requires a court to apply the same law as was applied in the past in similar cases. This reliance on precedent means that the outcomes in similar factual situations should always be the same. A person who trespasses on another person’s land, for example, should receive the same treatment at the hands of a court as in previous cases involving this same transgression. Under code law, courts look first to the provisions of the enacted law to discover what the outcome of a particular case should be.

The legal definition of the term common law is law that derives its authority solely from usages and customs of immemorial antiquity or from judgments and decrees of the courts that recognize, affirm, and enforce such usages and customs. It has been characterized as law so ancient that “the mind of man runneth not to the contrary.” In some other contexts, however, the term may simply [Page 103] refer to a general law common to a particular people, a country, or a group of countries. In the United States, common law originally referred to all statutory and judge-declared law in effect before the American Revolution.

Common law was not expressly incorporated into the law of the United States by the Constitution. The only explicit references to common law in the document appear in the Seventh Amendment (1791): “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” A number of the rights guaranteed in the Constitution, however, especially the rights of persons accused of crimes, reflect accepted common law principles.

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