Gavin Howe
Common law is a body of law based on custom and general principles that are embodied in case law, serving as precedent and applied to situations not covered by statute. It is primarily contrasted with civil law, which is now widespread in continental Europe. Common law has its roots in England, dating back to the early Middle Ages in the King's Court (Curia Regis). Over time, the pre-Norman system of local customs and laws was replaced by a standardised system across the country, giving rise to the term common law. This system was brought to the US by the first English colonists, and it was later adopted by each state and the national government following the American Revolution. The US courts may refer to the decisions of English courts and other states within the Union when interpreting common law, but they are not bound by them.
| Characteristics | Values |
|---|---|
| Origin of Common Law in the U.S. | England |
| Basis | Custom and general principles |
| Sources | Common law principles of England, equity principles, Christianity, ecclesiastical courts, and more |
| Application | Civil cases |
| Precedent | Yes, judges are bound to follow the decisions of earlier judges in similar cases |
| Legislative Enactments | Not mentioned in legislative enactments |
| Law Merchant | Recognized as part of common law but cannot override local laws |
| Influence | Influenced by the King's Court (Curia Regis) in the early Middle Ages |
| Adoption by New States | Through express provision or judicial decision |
| Independence | U.S. courts are not required to adhere to English common law court decisions |
| Modern Usage | "Judge-made law" rather than declaratory statutes |
| Codes | Common law countries are adopting codes similar to civil law systems in specific areas |
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What You'll Learn
English common law
The common law of the United States has its roots in English common law. English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was developed as a system of procedural remedies, which, over time, evolved into the modern system where substantive rights are seen as primary.
The development of English common law was influenced by various sources, including Christianity and ecclesiastical courts. The canon and civil laws administered by ecclesiastical courts, for example, are considered a branch of English common law. Over time, common law came to be based on judicial decisions and case law, with judges regarding each other's decisions as binding precedent. This practice, known as stare decisis, contributed to the development of a consistent legal system across the country.
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The influence of Christianity
The common law of the United States can be traced back to England, specifically to the early middle ages in the King's Court (Curia Regis). When new states were formed, they adopted the common-law system either by an express provision or by a judicial decision. However, the US courts do not solely depend on the expositions of English courts and are not required to adhere to their decisions. Instead, the courts may look to the decisions of other states of the Union and their own principles and rules of common law.
Christianity has had a significant influence on American jurisprudence since the first settlements in British North America. It is considered part of the origin of common law in the US, along with common-law principles from England and equity principles. The Bible, especially Mosaic law as interpreted within the colonists' theological traditions, was extensively drawn upon in early colonial laws. Christianity also contributed to an evolving constitutional tradition in the colonies and, later, the newly independent states, which culminated in the US Constitution framed in 1787.
This influence is evident in broad principles, such as the separation of powers to check the abuse of government powers, and in specific provisions such as the requirement for convictions for treason to be supported by "the testimony of two witnesses" and the prohibition on double jeopardy. Christianity's influence on law was most pronounced in the colonial era, especially in New England's Puritan commonwealths, and it remained a dominant cultural force well into the nineteenth century.
However, as the influence of secularism and rationalism grew, Christianity's influence declined. This shift is reflected in bitter political and legal controversies involving the Sunday mails, blasphemy laws, and the invocation of the Bible as authority in judicial proceedings. While Christianity has shaped the development of American law, the courts have not regarded it as controlling or imposing in nature when discussing religious duties, morality, or decency.
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The role of custom
The common law system in the US has its roots in various sources and customs, including English common law principles, equity jurisprudence, Christianity, and ecclesiastical courts. The US common law system can be traced back to the early English Middle Ages, with the establishment of the King's Court (Curia Regis). This court, based in Westminster near London, created a centralised system of law that replaced the varying local customs and laws of different localities. This new system, known as "common law", aimed to provide public order and generate revenue for the government.
English common law was brought to the US continent by the first English colonists, who considered it their birthright. After the American Revolution, each of the states and the national government adopted this legal system. The US courts, however, are not bound by English common law and can deviate from it based on their own decisions or the decisions of other states in the Union.
Equity jurisprudence, or the principles of equity, are also considered part of US common law. These doctrines, not mentioned in legislative enactments, guide judges in their decisions. An example of this is the law merchant, which is recognised as part of common law. The law merchant is a system of rules and customs adopted by traders to regulate their commercial transactions, provided they do not override local laws and commercial usages.
Christianity has also influenced the development of common law in the US, although it is not considered controlling or imposing. If Christianity is the dominant religion in a country, insults to it can disturb the public peace, which is a matter for the courts. Ecclesiastical courts, which administered laws based on Christian principles, also contributed to the development of common law in the US, despite not being established within the country.
In addition to these influences, the US common law system has been shaped by various other sources, including the equity principles, the rules and usages of traders, and the decisions of English and American courts. This evolution of common law in the US has resulted in a legal system that now differs from that of England, with US courts giving more weight to precedent and judicial decisions than their English counterparts.
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Equity jurisprudence
The common law in the US originated in England, brought over by the first English colonists and later adopted by each of the states and the national government. The common law is a body of law based on custom and general principles embodied in case law, serving as precedent and applied to situations not covered by statute.
Equity is a fundamental part of common law. In common law jurisdictions, "equity" refers to a particular body of rules that originated in a special system of courts. In the US, the principles of equity are regarded as part of the common law. Equity is derived from the idea of '
In the English common law system, equity was developed in the Court of Chancery (or English Court of Chancery) and is now administered concurrently with common law. Equity was the name given to the law administered in the Court of Chancery, which was criticised for lacking fixed rules and varying from chancellor to chancellor. However, it was argued that equity mitigated the rigour of the common law by looking to substance rather than form.
In the US, the Process Act of 1792 ensured that equity cases and common law cases remained distinct, with judges directed to look to the precedents of the English Court of Chancery. Equity empowered federal courts to provide relief in exceptional cases, such as ordering restitution for victims of fraud or issuing injunctions to prevent irreparable harm.
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Ecclesiastical courts
The common law system in the US originated in England and was adopted by the country's first English colonists, who claimed it as their birthright. After the American Revolution, common law was adopted by each of the states and the national government.
In organised Christianity, ecclesiastical courts—also known as court Christian or court spiritual—are non-adversarial courts conducted by church-approved officials. They hold jurisdiction mainly in spiritual or religious matters, such as interpreting or applying canon law. Ecclesiastical courts are considered a branch of English common law.
There is a difference in opinion about the adoption of ecclesiastical laws in the US. On one hand, since ecclesiastical courts were not established in the US, the code of laws enforced in such courts cannot be considered part of US common law. On the other hand, the canon and civil laws administered by ecclesiastical courts are considered unwritten laws of England, which were adopted and used in certain jurisdictions.
In the US, ecclesiastical law is derived from canon and civil law and is administered by ecclesiastical courts. It governs the doctrine of a specific church, usually Anglican canon law. Ecclesiastical courts hear matters concerning religion, but their duties and work extend beyond controlling clergies and church doctrines. For example, before the Reformation, ecclesiastical courts held significant jurisdiction in matters relating to matrimonial causes and testate and intestate succession. In the 19th century, their jurisdiction was limited to controversies in areas of church property and ecclesiastical disciplinary proceedings.
In the Church of England, ecclesiastical courts are a system of courts held by the authority of the Crown, who is ex officio the Supreme Governor of the Church of England. The Ecclesiastical Courts Acts 1787 to 1860 is the collective title of various acts relating to ecclesiastical courts.
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Frequently asked questions
The US adopted common law from England.
Common law is a body of law based on custom and general principles embodied in case law, serving as precedent and applied to situations not covered by statute.
The US adopted common law after the American Revolution, with each state and the national government adopting it.
Common law is based on precedent and case law.
Common law has its roots in England, dating back to the early Middle Ages in the King's Court (Curia Regis).
