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Common law
BERJAYA
Legal systems of the world, with common law systems in red[1]
CategoryLegal system
LocationAt least 40 countries, including the United Kingdom, United States, Australia, Canada, India, Ireland, and Hong Kong
Created

The common law is the system of judge-made law that originates in the King's courts of medieval England and which has since been received to the former colonies of the British Empire.

During the 12th century, Henry II established a system of travelling judges, who decided on cases and enforced a set of laws common to all England. Over time, the precedent of the judges's decisions evolved into a sophisticated system of common law, which constituted the main form of lawmaking in England for hundreds of years. Today, the term 'common law' refers to both the historically-English legal system that recognises the ability of judges to create rules binding on future courts as well as the body of laws that emerges from such systems.

Unlike the civil law tradition of much of Continental Europe, the common law tradition never received the Roman law or embarked on a project of widespread codification, leaving common law judges broader discretion in statutory interpretation and performing a quasi-legislative function in adjudication. Nonetheless, some countries, such as South Africa and Scotland, have mixed jurisdictions that incorporate both common law and civil law elements. The common law can also be distinguished from valid laws that are created by other judicial or legislative systems, including statutes, the law of equity, and religious laws such as the canon law or sharia.

Research in law and finance has found that common law systems are superior to civil law systems in ensuring pragmatic, efficient, and commercially viable decisions, resulting in conditions conducive to greater overall economic development. Benefits of the common law system include the adaptability and flexibility of judges to respond to commercial realities, the consistency and stability of binding judicial precedent, and the frequent evaluation and evolution of inefficient rules that arise from litigation. At the same time, the paramount role of judges in common law courts has been criticised as giving too much power to unelected officials, predicating legal certainty upon the nature and volume of cases litigated, and allowing for retrospective and major legal changes without prior notice.

Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems, including Australia, Bangladesh, Canada, Hong Kong, India, Ireland, Nigeria, Pakistan, Singapore, and the United States.

Definition and terminology

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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.[2] Secondly, as such, term 'common law' later came to be synonymous with judge-made laws, as distinct from statutory law.[3][4] 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.[5] 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.[6]

Laws common to all England

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Initially, the common law referred to the laws that were common to all the king's courts across England, the law which originates in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.[2] 'Common law' in this sense is distinct from the system of laws admistered by the local folk courts of England's various shires and hundreds, where most legal disputes were solved prior to the Norman Conquest.[2] Even after 1066, 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.[2]

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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.[7][8] However, by that time, the English already had the common law system in place, so that common law jurisdictions often differ significant from civil law ones in terms of judicial reasoning and the sources of law.[9][10] Some jurisdictions, nonetheless, maintain fused systems that incorporate both civil law and common law aspects, such as Louisiana and Canada.[citation needed]

Despite the common law and civil law systems being distinct, the laws and legal scholarship of both systems have, both historically and contemporarily, influenced one another.[citation needed] Early common law judges and scholars, including Glanvill and Bracton, had been well accustomed with Roman law, with many being clerics trained in the Roman canon law.[11] Bracton's influential treatise De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by canon law and the division of the law in Justinian's Institutes,[12] later influencing Blackstone's Commentaries on the Laws of England.[13]

Roman law ideas regained importance in common-law legal scholarship with the revival of academic law schools in the 19th century.[14] 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.[15] 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.[16](p5) One of the most significant attempts at condification in the common-law tradition was the creation of the Uniform Commercial Code (UCC) in the United States, led by the American Law Institute and Uniform Law Commission,[16](p6) and which has now been enacted, with some local variations, in the majority of state and territorial jurisdictions in the US, including the District of Columbia.[17][18]

Law and equity

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As early as the 15th century, it became the practice that litigants, who felt they had been wronged by the common law courts, would petition the King for relief. Eventually, the Lord Chancellor became in charge of administering such relief to litigants, being regarded as the Keeper of the King's Conscience.[19] The Lord Chancellor's jurisdiction later evolved into a court of law known as the Court of Chancery, which administered relief 'in equity' to litigants. As the courts of equity became more popular as a court of first instance, owing to the rigid rules of the common law courts, equity came to develop a system of legal doctrines separate from those in common law. In the 17th century, it was established that where the rules of equity and common law conflicted, equity would prevail.[20]

In the late 19th century, the separate judicial systems of common law and equitable courts in England were fused, although the rules of equity were retained.[21] In 1937, the new Federal Rules of Civil Procedure in the United States combined common law and equitable actions into one form of suit, the "civil action",[22] with substantive distinctions between the two forms of law remaining.[23] Some jurisdictions, particularly in the United States, retain separate legal and equitable court systems.[citation needed]

Jurisprudence and theory

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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).[24][25][26] The "ancient unwritten universal custom" view was the foundation of the first treatises by Blackstone and Coke,[27][28][29] and was universal among lawyers and judges from the earliest times to the mid-19th century.[30]

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,[30] nor is it a workable or desirable doctrine.[29][31] The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.[30] 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.[30][32][33]

Lord Mansfield, then Solicitor General Murray, in the case of Omychund v. Barker, who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament".[34] Jeremy Bentham, on the other hand, has criticised judicial lawmaking as "dog law",[citation needed] arguing in favor of codification and narrow judicial decisions. 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.[35] Pound argues that judges, particularly where statutes and precedent are silent or ambiguous on an issue, perform an essentially legislative function,[31] a view assented to by Oliver Wendell Holmes.[36] Nonetheless, as legislation and case law become more comprehensive, courts have a narrower room to operate within the bounds of statutory interpretation.[37]

Financial and economic research

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Owing to the nature of precedent in common law, the commercial strengths of common law systems include consistency, certainty and finality.[38] Common-law judges, especially from the law and economics movement, also can exercise broader adjudicative discretion in ensuring economically efficient and commercially pragmatic outcomes.[39][40][41] Research into law and finance has found that common law systems contribute significantly to the development of robust commercial systems and overall economic development.[42] As such, common law jurisdictions, such as England and Wales, California,[43] Delaware,[44] 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.[45][46]

Reception, influence and development of English law

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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,[47] 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.[48][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.[49][better source needed]

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The common law itself refers to the judge-made law that is contained in judicial precedent, which may include the application of statutes by judges in the exercise of statutory interpretation.[50] Additionally, common law courts generally adhere to the principle of stare decisis ("to stand by [things] decided"), which means that lower courts have to follow the previous decisions of higher courts, and higher courts either have to follow or consider carefully the decisions of equally-superior courts.[51]

Legal reasoning in common law jurisdictions not only require understanding of relevant statutes and regulations but is often heavily reliant upon careful consideration of case law.[52] Doctrinal reasoning requires the extraction of more general legal rules from particular cases, the assessment and reconciliation of potentially contradictory rules across multiple judgments, and the consideration of the rules and conventions of precedent.[53][54] The form of reasoning used in common law is known as casuistry or case-based reasoning.[citation needed] Oliver Wendell Holmes Jr. stated 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".[55] 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".[56]

For example, common-law judges can create new causes of action that did not exist previously in the common law or statute.[a] Much of the law of contract and tort in many common-law systems are entirely based on case law.[57][58] In this way, common law judges are able to develop the law incrementally.[59] In contrast, major civil law systems, including France, do not follow the stare decisis principle, with courts placing great emphasis on legislation itself and generally exercising restraint in its absence.[60] Indeed, the Napoleonic Code expressly forbade French judges to pronounce general principles of law.[61] Even where precedent has been established, civil law judges tend to give less weight to the previously-held rules and reasoning.[62]

Contemporary judges common law decisions today increasingly reflect both precedent and policy judgment drawn from economics, the social sciences, business, decisions of foreign courts, and the like.[63][64] The extent to which such factors should influence adjudication is the subject of extensive and active legal debate, being one of the most important issues of contemporary jurisprudence.[citation needed]

When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.[51] 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.[65][66]

History

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Well into the 19th century, legal maxims played a role in common law adjudication as authoritative statements of the law.[citation needed] Collections of legal maxims were popular in legal scholarship and education.[citation needed] Contemporary judges generally discourage the use of legal maxims in litigation and do not find them binding or persuasive,[67] although they are sometimes invoked by judges themselves as metaphors or statements of broad principle.[citation needed] Instead, during the early twentieth century, legal scholars and judges, particularly in the United States, began to increasingly criticise the use of formalistic reasoning, instead advocating for greater consideration of public policy, fairness, social and commercial norms, and empirical evidence, including from the social sciences.[68][69]

Statutory interpretation

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Mechanisms

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In England, judges have devised a number of rules as to how to deal with precedent decisions.[70]

Doctrine and practice

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In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to aslaw reports and yearbooks.[50]

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.[48] 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.[citation needed] 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.[71]

Stare decisis

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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.[72]

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.[73] 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

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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.[74]

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.[75] 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.[76][77]

Separation of powers

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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.[78][74]

History

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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,[2] which included much of what would today be regarded as family law. The doctrine of precedent developed during the 12th and 13th centuries,[79] as the collective judicial decisions that were based in tradition, custom and precedent.[80]

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.[81][82]

Medieval English common law

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BERJAYA
A view of Westminster Hall in the Palace of Westminster, London, early 19th century

King Henry II, the establisher of common law,[83][84] 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.[85][86] 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'.[86][87][88]

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law.[70]

Scots law

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Scotland developed a unique system that combined 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, 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,[89] and principles of natural justice and fairness have always played a role in Scots Law.[citation needed] From the 19th century, the Scottish approach to precedent developed into a stare decisis akin to that already established in England thereby reflecting a narrower, more modern approach to the application of case law in subsequent instances.[citation needed]

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

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BERJAYA
USCA: some annotated volumes of the official compilation and codification of federal statutes.

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.[90] 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.[91]

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.[93] Justice Lewis Powell strongly objected to this practice in an influential dissent for the case Cannon v. University of Chicago.[37]

British Raj (19th century – 1948)

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BERJAYA
The Constitution of India is the longest written constitution for a country, containing 395 articles, 12 schedules, numerous amendments and 117,369 words.

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.[94] Manu's central philosophy was tolerance and pluralism, and was cited across Southeast Asia.[95] 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.[96] 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.[97]

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.[98] 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.[99] 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.[100][verification needed]

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

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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.[101] To initiate a lawsuit, a pleading had to be drafted to meet myriad technical requirements: correctly categorizing the case into the correct legal pigeonhole (pleading in the alternative was not permitted), and using specific legal terms and phrases that had been traditional for centuries. Under the old common law pleading standards, a suit by a pro se ("for oneself", without a lawyer) party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.

One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.[102] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.[103] 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.[104]

Contemporary United Kingdom common law

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Scotland shares the Supreme Court with England, Wales and Northern Ireland for civil cases; the court's decisions are binding on the jurisdiction from which a case arises but only influential on similar cases arising in Scotland. This has had the effect of converging the law in certain areas. For instance, the modern UK law of negligence is based on Donoghue v Stevenson, a case originating in Paisley, Scotland.

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).[105]

International reception and influence

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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]

The common law is also influential on maritime law and international law.[citation needed]

The civil law system, in contrast, is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and west Africa.[114]

Roman-Dutch law

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Maritime law

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International law

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Civil law

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Scholarly works

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BERJAYA
Sir William Blackstone as illustrated in his Commentaries on the Laws of England

Edward Coke, a 17th-century Lord Chief Justice of England and a Member of Parliament (MP), wrote several legal texts that collected and integrated centuries of case law. Lawyers in both England and America learned the law from his Institutes and Reports until the end of the 18th century. His works are still cited by common law courts around the world.

The next definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765–1769. Since 1979, a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.

While he was still on the Massachusetts Supreme Judicial Court, and before being named to the U.S. Supreme Court, Justice Oliver Wendell Holmes Jr. published a short volume called The Common Law, which remains a classic in the field. Unlike Blackstone and the Restatements, Holmes' book only briefly discusses what the law is; rather, Holmes describes the common law process. Law professor John Chipman Gray's The Nature and Sources of the Law, an examination and survey of the common law, is also still commonly read in U.S. law schools.

In the United States, Restatements of various subject matter areas (Contracts, Torts, Judgments, and so on.), edited by the American Law Institute, collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law, and are considered highly persuasive authority, just below binding precedential decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of the common law and its variations throughout the various state jurisdictions.

Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).

See also

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References

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  1. 1 2 "Juriglobe". www.juriglobe.ca. Archived from the original on 2 November 2024. Retrieved 28 November 2024.
  2. 1 2 3 4 5 Langbein, Lerner & Smith (2009), p. 4.
  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. ↑ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
  5. ↑ 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...
  6. ↑ 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>.
  7. ↑ "Description and History of Common Law". Archived from the original on 28 February 2017. Retrieved 14 March 2017.
  8. ↑ "The Common Law and Civil Law Traditions". Archived from the original on 22 April 2016. Retrieved 11 June 2016.
  9. ↑ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
  10. ↑ E.g., R. C. van Caenegem, The Birth of the English Common Law 89–92 (1988).
  11. ↑ E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).
  12. ↑ 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).
  13. ↑ 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.
  14. ↑ 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).
  15. ↑ 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.
  16. 1 2 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.
  17. ↑ "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.'
  18. ↑ "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.
  19. ↑ Watt, Gary (2020). Trusts and Equity (9th ed.). Oxford: Oxford University Press. p. 5. ISBN 9780198854142.
  20. ↑ Salmond 1907, p. 34.
  21. ↑ 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.
  22. ↑ Fed.R.Civ.P. 2.
  23. ↑ 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).
  24. ↑ Leiter, B (2016), "Philosophy of law - Realism, Jurisprudence, Legal Theory", Encyclopedia Britannica, retrieved 27 June 2026
  25. ↑ 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.
  26. ↑ Lehman, Jeffrey; Phelps, Shirelle (2005), West's encyclopedia of American law, Volume 3 (2nd ed.), Detroit: Thomson/Gale, p. 30, ISBN 9780787663704
  27. ↑ 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.
  28. ↑ James R. Stoner, Jr., Common Law and the Law of Reason (Stoner is a professor of political science, not law).
  29. 1 2 Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p. 15876.
  30. 1 2 3 4 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.")
  31. 1 2 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.
  32. ↑ Gearey, Adam; Morrison, Wayne; Jago, Robert (2013). The Politics of the Common Law: Perspectives, Rights, Processes, Institutions. Taylor & Francis. p. 115.
  33. ↑ Postema, Gerald. Bentham and the Common Law Tradition. doi:10.1093/oso/9780198793052.003.0006.
  34. ↑ I Atk. 21, 33, 26 Eng. Rep. 15, 22–23 (Ch. 1744)
  35. ↑ Pound, Roscoe (1941). "What of Stare Decisis?". Fordham Law Review. 10 (1).
  36. ↑ Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).
  37. 1 2 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.
  38. ↑ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
  39. ↑ Judicial Discretion in the Civil Law 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."
  40. ↑ "The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems". Indiana Journal of Global Legal Studies. Retrieved 10 May 2024.
  41. ↑ "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
  42. ↑ 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.
  43. ↑ Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.
  44. ↑ 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.")
  45. ↑ 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).
  46. ↑ 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).
  47. ↑ Edited Thinking like a lawyer: an introduction to legal reasoning[permanent dead link] (Westview Press, 1996), p. 10.
  48. 1 2 Social Law Library, Common Law or Civil Code?, Boston, Massachusetts.
  49. ↑ 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.
  50. 1 2 "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.
  51. 1 2 "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.
  52. ↑ Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 Texas Tech. L.Rev. 1 (Sep. 2007).
  53. ↑ Smith, Stephen A. (2000). "Taking Law Seriously". The University of Toronto Law Journal. 50 (2): 241–259. doi:10.2307/825992. ISSN 0042-0220.
  54. ↑ 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)
  55. ↑ Frederic R. Kellog, Law, Morals, and Justice Holmes, 69 Judicature 214 (1986).
  56. ↑ Benjamin N. Cardozo, The Nature of the Judicial Process 22–23 (1921).
  57. ↑ 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.")
  58. ↑ 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).
  59. ↑ It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities". Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 at para. 21.
  60. ↑ The Common Law and Civil Law Traditions, Robbins Collection, University of California at Berkeley. Archived 22 April 2016 at the Wayback Machine.
  61. ↑ "5. The judges are forbidden to pronounce, by way of general and legislative determination, on the causes submitted to them." Code of Napoleon, Decree of March 5, 1803, Law 5.
  62. ↑ Garoupa, Nuno; Liguerre, Carlos Gomez (2011). "The Syndrome of the Efficiency of the Common Law". Boston University International Law Journal. 29: 298.
  63. ↑ Foreign influence over American law is not new; only the controversy. For example, in The Western Maid, 257 U.S. 419, 432 (1922), Justice Holmes wrote "When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules," and adopted a rule from without to decide the case.
  64. ↑ Roper v. Simmons, 543 U.S. 551 (2005) (holding unconstitutional to impose capital punishment for crimes committed while under the age of 18, based on "evolving standards of decency", largely based on other nations' law).
  65. ↑ "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.
  66. ↑ "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.
  67. ↑ Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J., concurring).
  68. ↑ Holmes, Oliver Wendell Jr. (1897). "The Path of the Law". Harvard Law Review. 10 (8): 457–478. doi:10.2307/1322028. JSTOR 1322028.
  69. ↑ The Common Law "O. W. Holmes, Jr., The Common Law". 1882.
  70. 1 2 T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp. 260–261.
  71. ↑ Opoku, Kwame (1971). "An Introduction to Law in French-Speaking Africa". The Journal of Modern African Studies. 9 (2). doi:10.1017/S0022278X00025064.
  72. ↑ 83 Cr App R 191, 73 Cr App R 266.
  73. ↑ 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).
  74. 1 2 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.
  75. ↑ United States v. Sineneng-Smith, 590 U.S. 371 (2020).
  76. ↑ Frost, Amanda (2009). "The Limits of Advocacy". Duke Law Journal. 59 (3): 447–518.
  77. ↑ See Greenlaw v. United States and United States v. Sineneng-Smith.
  78. ↑ "Inquisitorial And Adversarial System Of Law". lawteacher.net.
  79. ↑ 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.
  80. ↑ Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law.
  81. ↑ 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.
  82. ↑ One history of the law before the Norman Conquest is Pollock and Maitland, The History of English Law before the Time of Edward I.
  83. ↑ Langbein, John. "Historical Foundations of the Law of Evidence" (PDF). Columbia Law Review: 1170.
  84. ↑ "The veiled history of the English jury trial". Harvard Law School.
  85. ↑ Croniques de London (Camden Soc., 1844), pp. 28–9.
  86. ↑ Chronica Rogeri de Houedene (RS, 1871), IV, p. 62.
  87. ↑ Annales Monastici (RS, 1864–69), III, p. 135.
  88. ↑ Stair Memorial Encyclopedia.
  89. ↑ 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.").
  90. ↑ 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).
  91. ↑ 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
  92. ↑ Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation. Oxford University Press. 2021. p. 134.
  93. ↑ Glenn 2000, p. 255.
  94. ↑ Glenn 2000, p. 276.
  95. ↑ 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.
  96. ↑ Viswanatha, S.T., International Law in Ancient India, 1925.
  97. ↑ Glenn 2000, p. 273.
  98. ↑ "Official, India". World Digital Library. 1890–1923. Archived from the original on 19 December 2019. Retrieved 30 May 2013.
  99. ↑ Jain 2006, p. 2.
  100. ↑ 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.
  101. ↑ 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.
  102. ↑ 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".
  103. ↑ 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".
  104. ↑ 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.
  105. ↑ Constitution Act, 1867, s. 91(10), (18).
  106. ↑ "About Bijuralism". Government of Canada, Department of Justice, Legislative Services Branch. 14 November 2008. Archived from the original on 23 August 2017. Retrieved 20 October 2017.
  107. ↑ 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.
  108. ↑ Asante "Over a hundred years of a national legal system in Ghana: a review and critique" 1988 Journal of African Law 31 70. Benion The Constitutional Law of Ghana (1962). Boahen Ghana: Evolution and Change in the Nineteenth and Twentieth Century (1975) 36. Quansah The Ghana Legal System (2011) p. 51.
  109. ↑ Balakrishnan, K. G. (23–24 March 2008). An Overview of the Indian Justice Delivery Mechanism (PDF) (Speech). International Conference of the Presidents of the Supreme Courts of the World. Abu Dhabi. Archived from the original (PDF) on 2 November 2012. Retrieved 1 August 2012. India, being a common law country, derives most of its modern judicial framework from the British legal system.
  110. ↑ Serrano Caldera, Alejandro (1990). "The Rule of Law in the Nicaraguan Revolution". Loyola of Los Angeles International and Comparative Law Review and Compara. 12 (2): 341.
  111. ↑ "UPDATE: Guide to Legal Research in Nicaragua". GlobaLex. New York University School of Law. Retrieved 8 May 2022.
  112. ↑ "Federation of Pakistan v. Bhatti, "in a common law jurisdiction such as ours"" (PDF). Archived from the original (PDF) on 6 October 2014. Retrieved 22 February 2012.
  113. ↑ Obeid, Nayla Comair; Brekoulakis, Stavros (20 February 2024). The Plurality and Synergies of Legal Traditions in International Arbitration: Looking Beyond the Common and Civil Law Divide. Kluwer Law International B.V. ISBN 978-94-035-2911-0.

Notes

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  1. ↑ Hadley v Baxendale (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute)
  2. ↑ See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (giving federal courts the authority to fashion common law rules with respect to issues of federal power, in this case negotiable instruments backed by the federal government); International News Service v. Associated Press, 248 U.S. 215 (1918) (creating a cause of action for misappropriation of "hot news" that lacks any statutory grounding)
  3. ↑ But see National Basketball Association v. Motorola, Inc., 105 F.3d 841, 843–44, 853 (2d Cir. 1997) (noting continued vitality of INS "hot news" tort under New York state law, but leaving open the question of whether it survives under federal law)
  4. ↑ In the words of Justice Robert H. Jackson: "Federal common law implements the federal Constitution and statutes, and is conditioned by them."[92]

Further reading

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