商学与法学的关系,CommonLaw common law union

我明白我明白什麽,我明白我不明白什麽,我不明白我明白什麼, 我不明白我不明白什麼.

商学思维与法学思维是两个截然不同但又可互补的集合式思维，简单地说，商学思维以追求发生商业关系为目的，任何销售技巧都为达成关系而拼命追求。但是，当追求失败，即双方并没有发生任何关系，在法律上却未必是失败，法律上的失败往往是关系纠缠不清，不能界定、不能摆脱、错综复杂。因此法律是界定有关系者各方的权责边界，并为权责风险作对冲的标记。记住，不能转移/对冲的风险，才是最大的风险。法律风险往往是最大的风险，因为没有法律，便没有现代一切商业行为的基础。

因此现代人必须法商结合，不能只懂追求发生关系而没有善後措施。

Common law

From Wikipedia, the free encyclopedia

This article is about common law as opposed to otherlegal systems. For Other uses, seeCommon law(disambiguation).

Legal systems of the world^{[originalresearch?]}

Civil law

Common law

Bijuridical/mixed(civil and common law)

Islamic law(Sharia)

Common law(alsoknown ascaselaworprecedent) islawdevelopedbyjudgesthroughdecisionsofcourtsand similar tribunals, as opposedtostatutesadopted through thelegislative process orregulationsissued bytheexecutive branch.^[1]

A "common law system" is alegal systemthatgives great precedential weight to common law,^[2]onthe principle that it is unfair to treat similar facts differentlyon different occasions.^[3]Thebody ofprecedentis called "common law"and it binds future decisions. In cases where the parties disagreeon what the law is, a common law court looks topastprecedentialdecisions of relevantcourts. If a similar dispute has been resolved in the past, thecourt is usuallyboundto follow thereasoning used in the prior decision (this principle is knownasstare decisis). If, however, the courtfinds that the current dispute is fundamentally distinct from allprevious cases (called a "matter of first impression"), judgeshave the authority and duty to make law bycreatingprecedent.^[4]Thereafter,the new decision becomes precedent, and will bind futurecourts.

In practice, common law systems are considerably morecomplicated than the simplified system described above. Thedecisions of a court are binding only in aparticularjurisdiction, and even within a givenjurisdiction, some courts have more power than others. For example,in most jurisdictions, decisions byappellate courtsarebinding on lower courts in the same jurisdiction, and on futuredecisions of the same appellate court, but decisions of lowercourts are only non-binding persuasive authority. Interactionsbetween common law,constitutionallaw,statutorylawandregulatory lawalso giverise to considerable complexity.However,stare decisis, the principle that similarcases should be decided according to consistent principled rules sothat they will reach similar results, lies at the heart of allcommon law systems.

One third of the world's population (approximately 2.3billion people) live in common law jurisdictions or in systemsmixed withcivil law. Particularly common lawis inEnglandwhere itoriginated in the Middle Ages,^[5]andin countries that trace their legal heritage to England as formercolonies of theBritish Empire,includingIndia,^[6]theUnited Statesfederalgovernment, 49 of its 50 states,Pakistan,^[7]Nigeria,Bangladesh,Canadaand all its provinces exceptQuebec,Malaysia,Ghana,Australia,^[8]Sri Lanka,HongKong,Singapore,Burma,Ireland,NewZealand,Jamaica,Trinidad andTobago,Cyprus,Barbados,^[9]South Africa,Zimbabwe,Cameroon,Namibia,Liberia,Sierra Leone,Botswana,GuyanaandIsrael.

Primary connotations

The termcommon law, in contrasttoiuscommune,^[10]hasthree mainconnotationsand severalhistorical meanings worth mentioning:

1. Common law as opposed to statutory law andregulatory law[edit]

Connotation 1distinguishesthe authority thatpromulgateda law. For example,most areas of law in most Anglo-Americanjurisdictionsinclude "statutorylaw" enacted by alegislature, "regulatory law" promulgatedbyexecutive branchagenciespursuant to delegation of rule-making authority from thelegislature, and common law (connotation 1) or "caselaw",i.e., decisions issuedbycourts(orquasi-judicialtribunalswithinagencies).^[11][12]Thisfirst connotationcan befurther differentiated into

(a) pure common law

arising from the traditional and inherent authority ofcourts to define what the law is, even in the absence of anunderlying statute or regulation. Examples includemostcriminallawandprocedural lawbefore the20th century, and even today, mostcontract lawandthelaw of torts.

(b) interstitial common law

court decisions that analyze, interpret and determine thefine boundaries and distinctions in law promulgated by otherbodies. This body of common law (connotation 1), sometimes called"interstitial common law," includes judicial interpretation oftheConstitution, of legislative statutes, andofagency regulations, and the law applicationof law to specific facts.^[13]

2. Common law legal systems as opposed to civil lawlegal systems

Connotation2differentiates "common law" jurisdictionsand legal systems from "civil law" or "code" jurisdictions.^[13]Commonlaw (connotation 2) systems place great weight oncourt decisions, which are considered "law" with the same force oflaw as statutes—for nearly a millennium, common law (connotation 2) courts have had the authorityto make law where no legislative statute exists, and statutes meanwhat courts interpret them to mean. By contrast, in civil lawjurisdictions (the legal tradition that prevails, or is combinedwith common law, in Europe and most non-Islamic, non-common lawcountries), courts lack authority to act where there is no statute,and judicial precedent is given less interpretive weight (whichmeans that a judge deciding a given case has more freedom tointerpret the text of a statute independently, and lesspredictably), and scholarly literature is given more. For example,theNapoleonic codeexpresslyforbade French judges to pronounce general principles oflaw.^[14]

As arule of thumb, commonlaw(connotation 2)systemstrace their history to England, while civil law systems trace theirhistory toRomanlawand theNapoleonic Code.

The contrast between common law and civil law systems iselaborated in"Contrasts between common law and civil lawsystems"and"Alternatives to common law systems",below.

3. Law as opposed to equity

Connotation 3 differentiates "common law" (or just "law")from "equity".^[11][12]Before1873,Englandhad two parallelcourt systems: courts of "law" that could onlyawardmoney damagesandrecognized only the legal owner of property, and courts of "equity"(courts of chancery) that couldissueinjunctive relief(that is,acourt orderto a party to dosomething, give something to someone, or stop doing something) andrecognizedtrustsof property. This splitpropagated to many of the colonies, including the United States(see "Reception Statutes", below). For mostpurposes, most jurisdictions, including the U.S. federal system andmost states, have merged the two courts.^[15][16]Additionally,even before the separate courts were merged, most courts werepermitted to apply both law (connotation 3) and equity, though underpotentially different procedural law. Nonetheless, the historicaldistinction between "law" (inconnotation 3) and "equity" remainsimportant today when the case involves issues such as thefollowing:

4. Historical uses

In addition, there are several historical uses of the termthat provide some background as to its meaning.

In one archaic usage, "common law" refers to thepre-Christian system of law, imported by the Saxons to England, anddating to before theNorman conquest, and before therewas any consistent law to be applied.^[18][19]Thisdefinition is found or alluded to in some internetdictionaries.^[20]

The EnglishCourt of CommonPleasdealt with lawsuits in which the Monarchhad no interest, i.e., between commoners.

Additionally, from at least the 11th century andcontinuing for several centuries after that, there were severaldifferent circuits in the royal court system, served byitinerant judgeswho wouldtravel from town to town dispensing the King's justice. The term"common law" was used to describe the law held in common betweenthe circuits and the different stops in each circuit. The morewidely a particular law was recognized, the more weight it held,whereas purely local customs were generally subordinate to lawrecognized in a plurality of jurisdictions.

These definitions are archaic, their relevance havingdissipated with the development of the English legal system overthe centuries, but they do explain the origin of the term as usedtoday.

Basic principles of common law

Common law adjudication

In a common law jurisdiction several stages of researchand analysis are required to determine "what the law is" in a givensituation. First, one must ascertain the facts. Then, one mustlocate any relevant statutes and cases. Then one must extract theprinciples, analogies and statements by various courts of what theyconsider important to determine how the next court is likely torule on the facts of the present case. Later decisions, anddecisions of higher courts or legislatures carry more weight thanearlier cases and those of lower courts.^[21]Finally,one integrates all the lines drawn and reasons given, anddetermines "what the law is". Then, one applies that law to thefacts.

The common law evolves to meet changing social needsand improved understanding

JusticeHolmescautioned that “the proper derivationof general principles in both common and constitutional law ...arise gradually, in the emergence of a consensus from a multitudeof particularized prior decisions.”^[22]Justice Cardozonotedthe “common law does not work from pre-established truths ofuniversal and inflexible validity to conclusions derived from themdeductively,” but “[i]ts method is inductive, and it draws itsgeneralizations from particulars.”^[23]

The common law (connotation 1) is more malleable thanstatutory law. First, common law courts are not absolutely bound byprecedent, but can (when extraordinarily good reason is shown)reinterpret and revise the law, without legislative intervention,to adapt to new trends in political, legalandsocial philosophy. Second, the common law(connotation 1) evolves through a seriesofgradual steps, that gradually works out allthe details, so that over a decade or more, the law can changesubstantially but without a sharp break, thereby reducingdisruptive effects.^[24]Incontrast to common law incrementalism, the legislative process isvery difficult to get started, as legislatures tend to delay actionuntil a situation is totally intolerable.^{[citationneeded]}For these reasons,legislative changes tend to be large, jarring and disruptive(sometimes positively, sometimes negatively, and sometimes withunintended consequences).

One example of the gradual change that typifies evolutionof the common law (connotation 1) is the gradual change inliability for negligence. For example, the traditional common lawrule through most of the 19th century was that a plaintiff couldnot recover for a defendant's negligent production or distributionof a harmful instrumentality unless the two wereinprivity of contract. Thus, only theimmediate purchaser could recover for a product defect, and if apart was built up out of parts from parts manufacturers, theultimate buyer could not recover for injury caused by a defect inthe part. In an 1842 English case,Winterbottom v.Wright,^[25]thepostal service had contracted with Wright to maintain its coaches.Winterbottom was a driver for the post. When the coach failed andinjured Winterbottom, he sued Wright.TheWinterbottomcourtrecognized that there would be "absurd and outrageous consequences"if an injured person could sue any person peripherally involved,and knew it had to draw a line somewhere, a limit on the causalconnection between the negligent conduct and the injury. The courtlooked to the contractual relationships, and held that liabilitywould only flow as far as the person in immediate contract("privity") with the negligent party.

A first exception to this rule arose in an 1852 case byNew York's highest court,Thomas v.Winchester,^[26]whichheld that mislabeling a poison as an innocuous herb, and thenselling the mislabeled poison through a dealer who would beexpected to resell it, put "human life in imminentdanger."Thomasused thisas a reason to create an exception to the "privity" rule. In, 1909,New York held inStatler v. Ray Mfg.Co.^[27]thata coffee urn manufacturer was liable to a person injured when theurn exploded, because the urn "was of such a character inherentlythat, when applied to the purposes for which it was designed, itwas liable to become a source of great danger to many people if notcarefully and properly constructed."

Yet the privity rule survived.InCadillac Motor Car Co. v.Johnson,^[28](decidedin 1915 by the federal appeals court for New York and severalneighboring states), the court held that a car owner could notrecover for injuries from a defective wheel, when the automobileowner had a contract only with the automobile dealer and not withthe manufacturer, even though there was "no question that the wheelwas made of dead and ‘dozy‘ wood, quite insufficient for itspurposes." TheCadillaccourt was willing toacknowledge that the case law supported exceptions for "an articledangerous in its nature or likely to become so in the course of theordinary usage to be contemplated by the vendor." However, heldtheCadillaccourt, "onewho manufactures articles dangerous only if defectively made, orinstalled, e.g., tables, chairs, pictures or mirrors hung on thewalls, carriages, automobiles, and so on, is not liable to thirdparties for injuries caused by them, except in case of willfulinjury or fraud,"

Finally, in the famous caseofMacPherson v. Buick MotorCo.,^[29]in1916,Judge Benjamin CardozoforNew York's highest court pulled a broader principle out of thesepredecessor cases. The facts were almost identicaltoCadillaca yearearlier: a wheel from a wheel manufacturer was sold to Buick, to adealer, to MacPherson, and the wheel failed, injuring MacPherson.Judge Cardozo held:

It may be that Statler v. Ray Mfg. Co. have extended therule of Thomas v. Winchester. If so, this court is committed to theextension. The defendant argues that things imminently dangerous tolife are poisons, explosives, deadly weapons—things whose normalfunction it is to injure or destroy. But whatever the rule inThomas v. Winchester may once have been, it has no longer thatrestricted meaning. A scaffold (Devlin v. Smith, supra) is notinherently a destructive instrument. It becomes destructive only ifimperfectly constructed. A large coffee urn (Statler v. Ray Mfg.Co., supra) may have within itself, if negligently made, thepotency of danger, yet no one thinks of it as an implement whosenormal function is destruction. What is true of the coffee urn isequally true of bottles of aerated water (Torgeson v. Schultz, 192N. Y. 156). We have mentioned only cases in this court. But therule has received a like extension in our courts of intermediateappeal. In Burke v. Ireland (26 App. Div. 487), in an opinion byCULLEN, J., it was applied to a builder who constructed a defectivebuilding; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to themanufacturer of an elevator; in Davies v. Pelham Hod Elevating Co.(65 Hun, 573; affirmed in this court without opinion, 146 N. Y.363) to a contractor who furnished a defective rope with knowledgeof the purpose for which the rope was to be used. We are notrequired at this time either to approve or to disapprove theapplication of the rule that was made in these cases. It is enoughthat they help to characterize the trend of judicialthought.

We hold, then, that the principleofThomas v. Winchesterisnot limited to poisons, explosives, and things of like nature, tothings which in their normal operation are implements ofdestruction. If the nature of a thing is such that it is reasonablycertain to place life and limb in peril when negligently made, itis then a thing of danger. Its nature gives warning of theconsequences to be expected. If to the element of danger there isadded knowledge that the thing will be used by persons other thanthe purchaser, and used without new tests then, irrespective ofcontract, the manufacturer of this thing of danger is under a dutyto make it carefully. ... There must be knowledge of a danger, notmerely possible, but probable.

Cardozo's new "rule" exists in no prior case, but isinferrable as a synthesis of the "thing of danger" principle statedin them, merely extending it to "foreseeable danger" even if "thepurposes for which it was designed" were not themselves "a sourceof greatdanger."MacPhersontakessome care to present itself as foreseeable progression, not a wilddeparture. Cardozo continues to adhere to the original principleofWinterbottom, that "absurd andoutrageous consequences" must be avoided, and he does so by drawinga new line in the last sentence quoted above: "There must beknowledge of a danger, not merely possible, but probable." Butwhile adhering to the underlying principlethatsomeboundary isnecessary,MacPhersonoverruledthe prior common law by rendering the formerly dominant factor inthe boundary, that is, the privity formality arising out of acontractual relationship between persons, totally irrelevant.Rather, the most important factor in the boundary would be thenature of the thing sold and the foreseeable uses that downstreampurchasers would make of the thing.

This illustrates two crucial principles that are often notwell understood by non-lawyers. (a) Thecommon lawevolves, thisevolution is in the hands of judges, and judges have "made law" forhundreds of years. (b) The reasons given for a decision are oftenmore important in the long run than the outcome in a particularcase. This is the reason that judicial opinions are usually quitelong, and give rationales and policies that can be balanced withjudgment in future cases, rather than the bright-line rules usuallyembodied in statutes.

Interaction of constitutional, statutory and commonlaw

In common law legal systems (connotation 2), the common law (connotation 1) is crucial to understandingalmost all important areas of law. For example,inEngland and Wales, in English Canada, and in moststates of theUnited States, the basic lawofcontracts,tortsandpropertydo not exist instatute, but only in common law (though there may be isolatedmodifications enacted by statute). As another example,theSupreme Court of theUnited Statesin 1877,^[30]heldthat aMichiganstatute that established rulesforsolemnizationof marriages didnot abolish pre-existingcommon-law marriage, because the statutedid not affirmatively require statutory solemnization and wassilent as to preexisting common law.

In almost all areas of the law (even those where there isa statutory framework, such as contracts for the sale ofgoods,^[31]orthe criminal law),^[32]legislature-enactedstatutes generally give only terse statements of general principle,and the fine boundaries and definitions exist only in the commonlaw (connotation 1(a)). To find out what theprecise law is that applies to a particular set of facts, one hasto locateprecedentialdecisions on thetopic, and reason from those decisions byanalogy.To consider but one example, theFirstAmendment to the United StatesConstitutionstates "Congressshall makeno law respecting an establishment of religion, or prohibiting thefree exercise thereof"—but interpretation (that is, determining thefine boundaries, and resolving the tension between the"establishment" and "free exercise" clauses) of each of theimportant terms was delegated by Article III of the Constitution tothe judicial branch,^[33]sothat the current legal boundaries of the Constitutional text canonly be determined by consulting the common law.^[34]

In common law jurisdictions (connotation 2), legislatures operate underthe assumption thatstatuteswill be interpreted againstthe backdrop of the pre-existing common law (connotation 1) and custom. For example, inmost U.S. states, the criminal statutes are primarily codificationof pre-existing common law. (Codificationis theprocess of enacting a statute that collects and restatespre-existing law in a single document—when that pre-existing law iscommon law, the common law remains relevant to the interpretationof these statutes.) In reliance on this assumption, modern statutesoften leave a number of terms and fine distinctions unstated—forexample, a statute might be very brief, leaving the precisedefinition of terms unstated, under the assumption that these finedistinctions will be inherited from pre-existing common law. (Forthis reason, many modern American law schools teach the common lawof crime as it stood in England in 1789, because that centuries-oldEnglish common law is a necessary foundation to interpreting moderncriminal statutes.)

With the transition from English law, which had common lawcrimes, to the new legal system under theU.S. Constitution, whichprohibitedex postfactolawsat both thefederal and state level, the question was raised whether therecould be common law crimes in the United States. It was settled inthe case ofUnited States v. Hudsonand Goodwin, 11U.S.32(1812),which decided that federal courts had no jurisdiction to define newcommon law crimes, and that there must always be a (constitutional)statute defining the offense and the penalty for it.

Still, many states retain selected common law crimes. Forexample, in Virginia, the definition of the conduct thatconstitutes the crime of robbery exists only in the common law, andthe robbery statute only sets the punishment.^[35]Virginia Codesection1-200 establishes the continued existence and vitality of commonlaw principles and provides that "The common law of England,insofar as it is not repugnant to the principles of the Bill ofRights and Constitution of this Commonwealth, shall continue infull force within the same, and be the rule of decision, except asaltered by the General Assembly."

By contrast to statutory codification of common law, somestatutes displace common law, for example to create anewcause of actionthat did notexist in the common law, or to legislatively overrule the commonlaw. An example is thetortofwrongful death, which allows certain persons,usually a spouse, child orestate, to sue for damages on behalf of thedeceased. There is no such tort in English common law; thus, anyjurisdiction that lacks a wrongful death statute will not allow alawsuit for the wrongful death of a loved one. Where a wrongfuldeath statute exists, the compensation or other remedy available islimited to the remedy specified in the statute (typically, an upperlimit on the amount of damages). Courts generally interpretstatutes that create new causes of action narrowly—that is, limitedto their precise terms—because the courts generally recognize thelegislature as being supreme in deciding the reach of judge-madelaw unless such statute should violate some "secondorder"constitutionallawprovision(cf.judicial activism).

Where a tort is rooted in common law (connotation 1(a)), all traditionallyrecognized damages for that tort may be sued for, whether or notthere is mention of thosedamagesin thecurrentstatutory law. For instance, a person whosustains bodily injury through thenegligenceof another may sue formedical costs, pain, suffering, loss of earnings or earningcapacity, mental and/or emotional distress, lossofquality of life, disfigurement and more.These damages need not be set forth in statute as they alreadyexist in the tradition of common law. However, without a wrongfuldeath statute, most of them are extinguished upon death.

In the United States, the power of the federal judiciaryto review and invalidate unconstitutional acts of the federalexecutive branch is stated in the constitution, Article IIIsections 1 and 2: "The judicial Power of the United States, shallbe vested in one supreme Court, and in such inferior Courts as theCongress may from time to time ordain and establish. ... Thejudicial Power shall extend to all Cases, in Law and Equity,arising under this Constitution, the Laws of the United States, andTreaties made, or which shall be made, under their Authority..."The first famous statement of "the judicial power"wasMarbury v. Madison,5U.S.(1Cranch)137(1803).Later cases interpreted the "judicial power" of Article III toestablish the power of federal courts to consider or overturn anyaction of Congress or of any state that conflicts with theConstitution.

Overruling precedent—the limitsofstare decisis

TheUnited States federalcourtsare divided into twelve regionalcircuits, each with a circuit court of appeals (plus a thirteenth,the Court of Appeals for the Federal Circuit, which hears appealsin patent cases and cases against the federal government, withoutgeographic limitation). Decisions of one circuit court are bindingon the district courts within the circuit and on the circuit courtitself, but are only persuasive authority on sister circuits.District court decisions are not binding precedent at all, onlypersuasive.

Most of the U.S. federal courts of appeal have adopted arule under which, in the event of any conflict in decisions ofpanels (most of the courts of appeal almost always sit in panels ofthree), the earlier panel decision is controlling, and a paneldecision may only be overruled by the court of appealssittingen banc(that is,all active judges of the court) or by a higher court.^[36]Inthese courts, the older decision remains controlling when an issuecomes up the third time.

Other courts, for example, the Court of Customs and PatentAppeals and the Supreme Court, always sitenbanc, and thusthelaterdecisioncontrols. These courts essentially overrule all previous cases ineach new case, and older cases survive only to the extent they donot conflict with newer cases. The interpretations of thesecourts—for example, Supreme Court interpretations of theconstitution or federal statutes—are stable only so long as theolder interpretation maintains the support of a majority of thecourt. Older decisions persist through some combination of beliefthat the old decision is right, and that it is not sufficientlywrong to be overruled.

In the UK, since 2009, theSupreme Court of theUnited Kingdomhas the authority to overruleand unify decisions of lower courts. From 1966 to 2009,thispowerlaywith theHouse of Lords, granted by the PracticeStatement of 1966.^[37]

Canada's system, described below, avoids regionalvariability of federal law by giving national jurisdiction to bothlayers of appellate courts.

Common law as a foundation for commercialeconomies

The reliance on judicial opinion is a strength of commonlaw systems, and is a significant contributor to the robustcommercial systems in the United Kingdom and United States. Becausethere is reasonably precise guidance on almost every issue, parties(especially commercial parties) can predict whether a proposedcourse of action is likely to be lawful or unlawful. This abilityto predict gives more freedom to come close to the boundaries ofthe law.^[38]Forexample, many commercial contracts are more economically efficient,and create greater wealth, because the parties know ahead of timethat the proposed arrangement, though perhaps close to the line, isalmost certainly legal. Newspapers, taxpayer-funded entities withsome religious affiliation, and political parties can obtain fairlyclear guidance on the boundaries within whichtheirfreedom ofexpressionrights apply.

In contrast, in non-common-law countries, andjurisdictions with very weak respect for precedent (example,theU.S. PatentOffice), finequestions of lawareredetermined anew each time they arise, making consistency andprediction more difficult, and procedures far more protracted thannecessary because parties cannot rely on written statements of lawas reliable guides. In jurisdictions that do not have a strongallegiance to a large body of precedent, parties havelessa prioriguidance and must often leavea bigger "safety margin" of unexploited opportunities, and finaldeterminations are reached only after far larger expenditures onlegal fees by the parties.

This is the reason for the frequent choice of the law ofthe State of New York in commercial contracts, even when neitherentity has extensive contacts with New York—and remarkably ofteneven when neither party has contacts with the UnitedStates.^[39]Commercialcontracts almost always include a "choice of law clause" to reduceuncertainty. Somewhat surprisingly, contracts throughout the world(for example, contracts involving parties in Japan, France andGermany, and from most of the other states of the United States)often choose the law of New York, even where the relationship ofthe parties and transaction to New York is quite attenuated.Because of its history as the United States' commercial center, NewYork common law has a depth and predictability not (yet) availablein any other jurisdictions of the United States. Similarly,American corporations are often formed underDelawarecorporate law, and American contractsrelating to corporate law issues (merger andacquisitionsof companies, rights ofshareholders, and so on.) include aDelawarechoice of lawclause, becauseof the deep body of law in Delaware on these issues.^[40]Onthe other hand, some other jurisdictions have sufficientlydeveloped bodies of law so that parties have no real motivation tochoose the law of a foreign jurisdiction (for example, England andWales, and the state of California), but not yet so fully developedthat parties with no relationship to the jurisdiction choose thatlaw.^[41]Outsidethe United States, parties that are in different jurisdictions fromeach other often choose the law of England and Wales, particularlywhen the parties are each in former British colonies and members ofthe Commonwealth. The common theme in all cases is that commercialparties seek predictability and simplicity in their contractualrelations, and frequently choose the law of a common lawjurisdiction with a well-developed body of common law to achievethat result.

Likewise, for litigation of commercial disputes arisingout of unpredictable torts (as opposed to the prospective choice oflaw clauses in contracts discussed in the previous paragraph),certain jurisdictions attract an unusually high fraction of cases,because of the predictability afforded by the depth of decidedcases. For example,Londonis considered the pre-eminentcentre for litigation ofadmiraltycases.^[42]

This is not to say that common law is better in everysituation. For example, civil law can be clearer than case law whenthe legislature has had the foresight and diligence to address theprecise set of facts applicable to a particular situation. For thatreason, civil law statutes tend to be somewhat more detailed thanstatutes written by common law legislatures—but, conversely, thattends to make the statute more difficult to read (the United Statestax code is an example).^[43]Nonetheless,as a practical matter, no civil law legislature can ever addressthe full spectrum of factual possibilities in the breadth, depthand detail of the case law of the common law courts of even asmaller jurisdiction, and that deeper, more complete body of lawprovides additional predictability that promotescommerce.

History

The term "common law" originally derives from the 1150sand 1160s, whenHenry II ofEnglandestablishedthesecularEnglish tribunals. The"common law" was the law that emerged as "common" throughout therealm (as distinct from the various legal codes that preceded it,such asMercianlaw, theDanelawand the law ofWessex)^[44]asthe king's judges followed each other's decisions to create aunified common law throughout England. The doctrine of precedentdeveloped during the 12th and 13th centuries,^[45]asthe collective judicial decisions that were basedintradition,customandprecedent.^[46]

The form of reasoning used in common law is knownascasuistryorcase-based reasoning. The commonlaw, as applied incivilcases(as distinctfromcriminal cases), was devised as a meansofcompensatingsomeone forwrongful acts known astorts,including bothintentional tortsand tortscaused bynegligence, and as developing the body of lawrecognizing and regulatingcontracts. The type ofprocedurepracticed incommon law courts is known as theadversarial system; this is also adevelopment of the common law.

Medieval English common law

See also:English law

In the late 800s,Alfred the GreatassembledtheDoombook(not to be confused with themore-famousDomesday Bookfrom 200 yearslater), which collected the existing laws of Kent, Wessex, andMercia, and attempted to blend in theMosaic code, Christian principles, and Germaniccustoms dating as far as the fifth century.^[47]

Before theNorman conquestin 1066,justice was administered primarily by what is today known asthecounty courts(the modern"counties" were referredto as "shires" in pre-Norman times), presided by thediocesanbishopandthesheriff, exercisingbothecclesiasticalandcivil jurisdiction.^[48]Trialby jury began in these courts.^{[48][citationneeded]}

In 1154,Henry IIbecame thefirstPlantagenetking. Among manyachievements, Henry institutionalized common law by creating aunified system of law "common" to the country through incorporatingand elevating local custom to the national, ending local controland peculiarities, eliminating arbitrary remedies and reinstatingajurysystem—citizens sworn on oath toinvestigate reliable criminal accusations and civil claims. Thejury reached itsverdictthrough evaluatingcommonlocal knowledge, not necessarilythrough the presentation ofevidence, a distinguishing factor from today'scivil and criminal court systems.

Henry II developed the practice of sending judges from hisown central court to hear the various disputes throughout thecountry. His judges would resolve disputes onanad hocbasis according to whatthey interpreted the customs to be. The king's judges would thenreturn to London and often discuss their cases and the decisionsthey made with the other judges. These decisions would be recordedand filed. In time, a rule, known asstare decisis(alsocommonly known as precedent) developed, whereby a judge would bebound to follow the decision of an earlier judge; he was requiredto adopt the earlier judge's interpretation of the law and applythe same principles promulgated by that earlier judge if the twocases had similar facts to one another. Once judges began to regardeach other's decisions to be binding precedent, the pre-Normansystem of local customs and law varying in each locality wasreplaced by a system that was (at least in theory, though notalways in practice) common throughout the whole country, hence thename "common law."

Henry II's creation of a powerful and unified courtsystem, which curbed somewhat the powerofcanonical(church) courts,brought him (and England) into conflict with the church, mostfamously withThomas Becket, theArchbishop of Canterbury.Eventually, Becket was murdered insideCanterbury Cathedralbyfour knights who believed themselves to be acting on Henry'sbehalf. Whether Henry actually intended to bring about theassassination of Becket is debatable, but there is no question thatat the time of the murder, the two men were embroiled in a bitterdispute regarding the power of Royal Courts to exercisejurisdiction over former clergymen. The murder of the Archbishopgave rise to a wave of popular outrage against the King. Henry wasforced to repeal the disputed laws and to abandon his efforts tohold church members accountable for secular crimes (seealsoConstitutions ofClarendon).

Judge-made common law operated as the primary source oflaw for several hundred years, beforeParliamentacquiredlegislative powers to createstatutory law. It is important to understandthat common law is the older and more traditional source of law,and legislative power is simply a layer applied on top of the oldercommon law foundation. Since the 12th century, courts have hadparallel and co-equal authority to make law^[49]—"legislatingfrom the bench" is a traditional and essential function of courts,which was carried over into the U.S. system as an essentialcomponent of the "judicial power" specified by Article III of theU.S. constitution.^[50]JusticeOliver Wendell Holmes,Jr.observed in 1917 that "judges do and mustlegislate."^[51]Thereare legitimate debates on how the powers of courts and legislaturesshould be balanced. However, a view that courts lack law-makingpower is historically inaccurate and constitutionallyunsupportable.

Influences of foreign legal systems

Roman law

The term "common law" (connotation 2) is often used as a contrastto Roman-derived "civil law", and the fundamental processes andforms of reasoning in the two are quite different. Nonetheless,there has been considerable cross-fertilization of ideas, while thetwo traditions and sets of foundational principles remaindistinct.

By the time of the rediscovery oftheRomanlawin Europe in the 12th and 13th centuries,the common law had already developed far enough to prevent a Romanlaw reception as it occurred on the continent.^[52]However,the first common law scholars, mostnotablyGlanvillandBracton, as well as the early royalcommon law judges, had been well accustomed with Roman law. Often,they were clerics trained in the Roman canon law.^[53]Oneof the first and throughout its history one of the most significanttreatises of the common law, Bracton’sDeLegibus et Consuetudinibus Angliae(On theLaws and Customs of England), was heavily influenced by thedivision of the law in Justinian’sInstitutes.^[54]Theimpact Roman law had decreased sharply after the age of Bracton,but the Roman divisions of actionsintoin rem(typically, actionsagainst athingorproperty for the purpose of gaining title to that property; must befiled in a court where the property is located)andinpersonam(typically, actions directedagainst a person; these can affect a person's rights and, since aperson often owns things, his property too) used by Bracton had alasting effect and laid the groundwork for a return of Roman lawstructural concepts in the 18th and 19th centuries. Signs of thiscan be found in Blackstone’sCommentaries on the Laws ofEngland,^[55]andRoman law ideas regained importance with the revival of academiclaw schools in the 19th century.^[56]Asa result, today, the main systematic divisions of the law intoproperty, contract, and tort (and to someextentunjust enrichment) can be found in thecivil law as well as in the common law.^[57]

Propagation of the common law to the colonies andCommonwealth by reception statutes

Plantations or colonies, in distant countries, are either suchwhere the lands are claimed by right of occupancy only, by findingthemdesert and uncultivated, and peopling them fromthe mother-country; or where, when already cultivated, they havebeen either gained byconquest, or ceded to usbytreaties. And both these rights are founded uponthe law of nature, or at least upon that of nations. But there is adifference between these two species of colonies, with respect tothe laws by which they are bound. For it hath been held, that if anuninhabited country be discovered and planted by English subjects,all the English laws then in being, which are the birthright ofevery subject, are immediately there in force... But in conqueredor ceded countries, that have already laws of their own,thekingmay indeedalter and change those laws; but, till he does actually changethem, the ancient laws of the country remain, unless such as areagainst the law of God, as in the case of an infidelcountry.Initial reception of English common law into newcolonies, and adoption of common law ondecolonization

InCommentaries on theLaws of England(Bk I, ch.4, pp 106–108),SirWilliamBlackstonedescribed the process by whichEnglish common law followed English colonization:

In other words, if an 'uninhabited' or 'infidel' territoryis colonized by Britain, then the English law automatically appliesin this territory from the moment of colonization; however if thecolonized territory has a pre-existing legal system, the native lawwould apply (effectively a form ofindirect rule) until formally superseded by theEnglish law, throughRoyalPrerogativesubjected totheWestminster Parliament.

As colonies gained independence from Britain, in mostcases the newly independent countriesadoptedEnglish commonlawprecedentas of the date ofindependence as the default law to carry forward into the newnation, to the extent not explicitly rejected by the newly freedcolony's founding documents or government. In some cases, thecarry-forward was simply understood, with no express provision ineither the new independence constitution or legislation. In othercases, the new legislature felt it necessary to "dot i's and crosst's" by enacting an express reception statute, even if common lawhad been received during the colonial period. Examples of bothpatterns are described below.

Reception statutes in the United States

For example, following theAmerican Revolutionin1776, one of the first legislative acts undertaken by each of thenewly independent states was to adopt a "reception statute" that gave legal effectto the existing body of English common law to the extent thatAmerican legislation or theConstitutionhad not explicitlyrejected English law.^[58]Somestates enacted reception statutes as legislative statutes, whileother states received the English common law through provisions ofthe state's constitution, and some by court decision. Britishtraditions such as themonarchywere rejected by the U.S.Constitution, but many English common law traditions suchashabeas corpus,jurytrials, and various othercivil libertieswere adoptedin the United States. Significant elements of English common lawprior to 1776 still remain in effect in many jurisdictions in theUnited States, because they have never been rejected by Americancourts or legislatures.^[59]

For example, the New York Constitution of1777^[60]providesthat:

[S]uch parts of the common law of England, and of thestatute law of England and Great Britain, and of the acts of thelegislature of the colony of New York, as together did form the lawof the said colony on the 19th day of April, in the year of ourLord one thousand seven hundred and seventy-five, shall be andcontinue the law of this State, subject to such alterations andprovisions as the legislature of this State shall, from time totime, make concerning the same.

AlexanderHamiltonemphasizedinThe Federalistthat this NewYork constitutional provision expressly made the common law subject"to such alterations and provisions as the legislature shall fromtime to time make concerning the same."^[61]Thus,even when reception was effected by a constitution, the common lawwas still subject to alteration by a legislature'sstatute.

One could note a certain irony: one of the first acts ofmany of the newly independent states was to adopt the law of theforeign sovereign from whom independence had just been gained. Butthis is one more demonstration of the point mentioned above(Commercial economies), that the newlyindependent states recognized the importance of a predictable andestablished body of law to govern the conduct of citizens andbusinesses, and therefore adopted the richest available source oflaw.

TheNorthwest Ordinance, which was approvedby theCongress of theConfederationin 1787, guaranteed "judicialproceedings according to the course of the commonlaw."Nathan Dane, the primary author of the NorthwestOrdinance, viewed this provision as a default mechanism in theevent that federal or territorial statutes were silent about aparticular matter; he wrote that if "a statute makes an offence,and is silent as to the mode of trial, it shall be by jury,according to the course of the common law."^[62]Ineffect, the provision operated as a reception statute, giving legalauthority to the established common law in the vast territorieswhere no states had yet been established.

Over time, as new states were formed from federalterritories, these territorial reception statutes became obsoleteand were re-enacted as state law. For example, a reception statuteenacted by legislation in the state of Washington requires that"[t]he common law, so far as it is not inconsistent with theConstitution and laws of the United States, or of the state ofWashington nor incompatible with the institutions and condition ofsociety in this state, shall be the rule of decision in all thecourts of this state."^[63]Inthis way, the common law was eventually incorporated into the legalsystems of every state exceptLouisiana(which inheritedacivil lawsystem fromitsFrenchcolonizersbeforetheLouisianaPurchaseof 1803, adopting a code similar tobut not directly based on theNapoleonic Codeof1804).

Reception in Canada

The Canadian colonies received the common law and Englishstatutes under Blackstone's principles for the establishment of thelegal system of a new colony. In five of the Canadian provinces,English law was received automatically, under the principle of asettled colony inheriting English law. In the other five provincesand the three territories, reception was governed by receptionstatutes. The reception of English law occurred long before Canadabecame fully independent, and reception statutes in Canada were notpart of the decolonisation process.

When Canada achieved formal independence with the passageof theCanada Act 1982, no reception statutes werenecessary for the decolonialisation process. English law hadalready been received in the various Canadian provinces andterritories by legislation and judicial decisions over the previoustwo centuries.

Atlantic Provinces

In the four Atlantic provinces (Nova Scotia, NewBrunswick, Prince Edward Island, and Newfoundland and Labrador),the reception of English law was automatic, under the principle setout by Blackstone relating to settled colonies. British colonistswere considered to have brought English common law as well asapplicable English statutes with them. No reception statute wasnecessary. The reception date for New Brunswick is 1660; for NovaScotia and Prince Edward Island, 1758; and for Newfoundland andLabrador, 1825.

Quebec

Quebec was settled as a French colony, and originallyoperated under the French civil law system, usingtheCoûtume de Paris. Upon the transfer ofthe colony to British control, the British government issuedtheRoyal Proclamation of 1763, whichimposed English common law on the colony, under the principle setout in Blackstone relating to captured colonies. However, in 1774,the British Parliament passed theQuebecAct, which restored the French civil law for matters of privatelaw (e.g., contracts, property, successions), while keeping theEnglish common law as the basis for public law in the colony,notably the criminal law. Subsequently, with the passage oftheCivil Code of LowerCanadain 1866, Quebec's civil law becameentirely statute-based, using the civil law system for matterswithin provincial jurisdiction. Public law in Quebec continues tohave its origin in the common law, but even here civil law plays astrong role. Where federal legislation requires interpretation,judges must look to the Civil Code of Quebec.^[64]

Ontario

The territory now forming Ontario was originally part ofQuebec, and thus was under the civil law. When Quebec was dividedinto the two provinces of Upper and Lower Canada bytheConstitutional Act of 1791, thefirst Act passed by the Legislature of Upper Canada was to adoptthe law of England for all purposes, replacing the civillaw.^[65]Thisstatute adopted both the English common law and English statutelaw. The foundation for the operation of the common law in Ontariotraces back to that reception statute.

The North-West Territories, Manitoba, Saskatchewan andAlberta

The new Dominion of Canada acquired the territoriesofRupert's LandandtheNorth-WesternTerritoryfrom the Hudson's Bay Company in1870. These territories were considered to have been settled byBritish colonists, and therefore the reception of English law wasautomatic. However, given the long history of control by theHudson's Bay Company, there was some uncertainty as to the date ofreception. To resolve this uncertainty, various statutes werepassed to set the date of reception as July 15, 1870, the date ofthe transfer of these two territories to Canada. The Province ofManitoba set this date for the reception of English law for matterscoming within provincial jurisdiction. The Legislature of theNorth-West Territories passed an Ordinance adopting the same datefor matters coming within territorial jurisdiction. The federalParliament eventually enacted a provision adopting this date forall matters in the North-West Territories.^[66]Thatprovision was carried forward in the provinces of Alberta andSaskatchewan, when they were created bytheAlberta Act^[67]andtheSaskatchewan Act.^[68]Thesame provision is the basis for the reception date of English lawin the Northwest Territories, Yukon and Nunavut.

British Columbia

British Columbia was considered to be a settled colony andtherefore received English law automatically, under the principleset out by Blackstone.

Reception in Hong Kong

When Hong Kong was handed overtoChinain1997, Hong Kong retained the common law through a reception statutein Chapter I, Article 8 of theHong Kong Basic Law:^[69]

The laws previously in force in Hong Kong, that is, thecommon law, rules of equity, ordinances, subordinate legislationand customary law shall be maintained, except for any thatcontravene this Law, and subject to any amendment by thelegislature of the Hong Kong Special AdministrativeRegion.

Reception in other British colonies

The pattern was repeated in many other former Britishcolonies as they gained independence from the UnitedKingdom.Ireland,Australia,NewZealand,India,Belize,and various Caribbean and African nations have adopted Englishcommon law through reception statutes although they do notinevitably continue to copy English Common Law; later cases canoften draw on decisions in other Common Lawjurisdictions.

Decline of Latin maxims, and adding flexibilitytostare decisis

Well into the 19th century, ancient maxims played a largerole in common law adjudication. Many of these maxims hadoriginated in Roman Law, migrated to England before theintroduction of Christianity to the British Isles, and weretypically stated in Latin even in English decisions. Many examplesare familiar in everyday speech even today, "One cannot be a judgein one's own cause" (seeDr. Bonham's Case), rights are reciprocalto obligations, and the like. Judicial decisions and treatises ofthe 17th and 18th centuries, such at those of Lord ChiefJusticeEdward Coke, presented the common law as acollection of such maxims. See alsoThomas Jefferson's letter to ThomasCooper.

Reliance on old maxims and rigid adherence to precedent,no matter how old or ill-considered, was under full attack by thelate 19th century.Oliver Wendell Holmes,Jr.in his famous article, "The Path of theLaw",^[70]commented,"It is revolting to have no better reason for a rule of law thanthat so it was laid down in the time of Henry IV. It is still morerevolting if the grounds upon which it was laid down have vanishedlong since, and the rule simply persists from blind imitation ofthe past." Justice Holmes noted that study of maxims might besufficient for "the man of the present," but "the man of the futureis the man of statistics and the master of economics." In an 1880lecture at Harvard, he wrote:

The life of the law has not been logic; it has beenexperience. The felt necessities of the time, the prevalent moraland political theories, intuitions of public policy, avowed orunconscious, even the prejudices which judges share with theirfellow men, have had a good deal more to do thanthesyllogismin determining the rules by which menshould be governed. The law embodies the story of a nation'sdevelopment through many centuries, and it cannot be dealt with asif it contained only theaxiomsand corollaries of a book ofmathematics.

In the early 20th century,Louis Brandeis, later appointed to the UnitedStates Supreme Court, became noted for his use of policy-drivingfacts and economics inhis briefs, and extensive appendicespresenting facts that lead a judge to the advocate's conclusion. Bythis time, briefs relied more on facts than on Latinmaxims.

Reliance on old maxims is now deprecated.^[71]Commonlaw decisions today reflect both precedent and policy judgmentdrawn from economics, the social sciences, business, decisions offoreign courts, and the like. The degree to which these externalfactorsshouldinfluenceadjudication is the subject of active debate, but thatjudgesdodraw of learningfrom other fields and jurisdictions is a fact of modern legallife.

1870 through 20th century, and the procedural merger oflaw and equity

As early as the 15th century, it became the practice thatlitigants who felt they had been cheated by the common-law systemwould petition the King in person. For example, they might arguethat an award of damages (atcommon law (connotation 3)) was notsufficient redress for a trespasser occupying their land, andinstead request that the trespasser be evicted. From this developedthe system ofequity, administered bytheLord Chancellor, in the courtsofchancery. By their nature, equity and lawwere frequently in conflict and litigation would frequentlycontinue for years as one court countermanded theother,^[72]eventhough it was established by the 17th century that equity shouldprevail. A famous example is the fictional caseofJarndyce v.JarndyceinBleak House, byCharles Dickens.^[73]

In England, courts of law (connotation 3) and equity were combined bytheJudicature Actsof 1873 and1875, with equity being supreme in case of conflict.^[73]

In theUnited States, parallel systemsoflaw(providingmoneydamages,with cases heard by a jury upon either party's request) and equity(fashioning a remedy to fit the situation, including injunctiverelief, heard by a judge) survived well into the 20th century.TheUnited States federalcourtsprocedurally separated law and equity:the same judges could hear either kind of case, but a given casecould only pursue causes in law or in equity, and the two kinds ofcases proceeded under different procedural rules. This becameproblematic when a given case required both money damages andinjunctive relief. In 1937, the newFederal Rules of CivilProcedurecombinedlawand equity into oneform of action, the "civil action." Fed.R.Civ.P. 2. The distinctionsurvives to the extent that issues that were "common law (connotation 3)" as of 1791 (thedate of adoption of theSeventhAmendment) are still subject to the right of either party torequest a jury, and "equity" issues are decided by ajudge.^[74]

Delaware,Mississippi, andTennesseestill have separatecourts oflawand equity, forexample, theCourt of Chancery. Inmanystatesthere are separatedivisions for law and equity within one court.

Common law pleading and its abolition in the early 20thcentury

For centuries, through the 19th century, the common lawrecognized only specificforms of action, and required very carefuldrafting of the opening pleading (called awrit) to slotinto one of them: Debt, Detinue, Covenant, Special Assumpsit,General Assumpsit, Trespass, Trover, Replevin, Case (or Trespass onthe Case), and Ejectment.^[75]Toinitiate a lawsuit, a pleading had to be drafted to meet myriadtechnical requirements: correctly categorizing the case into thecorrect legal pigeonhole (pleading in the alternative was notpermitted), and using specific "magic words" encrusted over thecenturies. Under the old common law pleading standards, a suit byapro se("for oneself,"without a lawyer) party was all but impossible, and there was oftenconsiderable procedural jousting at the outset of a case over minorwording issues.

One of the major reforms of the late 19th century andearly 20th century was the abolition of common law pleadingrequirements.^[76]Aplaintiff can initiate a case by giving the defendant "a short andplain statement" of facts that constitute an alleged wrong. Thisreform moved the attention of courts from technical scrutiny ofwords to a more rational consideration of the facts, and openedaccess to justice far more broadly.

Contrasts between common law and civil lawsystems

Adversarial system vs. inquisitorialsystem

Common law courts usually use anadversarial system, in which two sidespresent their cases to a neutral judge. Incontrast,civil lawsystemsusually use aninquisitorial systeminwhich an examining magistrate serves two roles by developing theevidence and arguments for one side and then the other during theinvestigation phase.

The examining magistrate then presents the dossierdetailing his or her findings to the president of the bench thatwill adjudicate on the case where it has been decided that a trialshall be conducted. Therefore the president of the bench's view ofthe case is not neutral and may be biased while conducting thetrial after the reading of the dossier. Unlike the common lawproceedings, the president of the bench in the inquisitorial systemis not merely an umpire and is entitled to directly interview thewitnesses or express comments during the trial, as long as he orshe does not express his or her view on the guilt of theaccused.

The proceeding in the inquisitorial system is essentiallyby writing. Most of the witnesses would have given evidence in theinvestigation phase and such evidence will be contained in thedossier under the form of police reports. In the same way, theaccused would have already put his or her case at the investigationphase but he or she will be free to change her or his evidence attrial. Whether the accused pleads guilty or not, a trial will beconducted. Unlike the adversarial system, the conviction andsentence to be served (if any) will be released by the trial jurytogether with the president of the trial bench, following theircommon deliberation.

There are many exceptions in both directions. For example,most proceedings before U.S. federal and state agencies areinquisitorial in nature, at least the initial stages (e.g.,a patent examiner, a social security hearing officer, and so on),even though the law to be applied is developed through common lawprocesses.

General principles of law

Both common law and civil law jurisdictions have formedwhat they variously call "pure common law" or "general principlesof law" to define what the law is in the absence of, or gap in,legislation.

Constant jurisprudence

Unlikestare decisis, the sharpseparation of powers between the judiciary and executive, anddistinction betweenjurisprudenceconstanteandadministrative law, is maintained byconsidering judge-made law to be non-binding.

Contrasting role of treatises and academic writings incommon law and civil law systems

The role of the legal academy presents a significant"cultural" difference between common law (connotation 2) andcivillawjurisdictions.

In common law jurisdictions, legal treatises compilecommon law decisions and state overarching principles that (in theauthor's opinion) explain the results of the cases. However, incommon law jurisdictions, treatises are not the law, and lawyersand judges tend to use these treatises as only "finding aids" tolocate the relevant cases. In common law jurisdictions, scholarlywork is seldom cited as authority for what the law is.^[77]Whencommon law courts rely on scholarly work, it is almost always onlyfor factual findings, policy justification, orthehistory and evolution of the law, but thecourt's legal conclusion is reached through analysis of relevantstatutes and common law, seldom scholarly commentary.

In contrast, incivillawjurisdictions, courts give the writingsoflawprofessorssignificant weight, partly becausecivil law decisions traditionally were very brief, sometimes nomore than a paragraph stating who wins and who loses. The rationalehad to come from somewhere else: the academy often filled thatrole. This balance may shift as civil law court decisions move inthe direction of common law reasoning.^{[citationneeded]}

Common law legal systems in the present day

The common law constitutes the basis of the legal systemsof:England andWalesandNorthern Irelandin theUK,Ireland, federal law intheUnitedStatesand the law ofindividualU.S.states(exceptLouisiana), federal lawthroughoutCanadaand the law of theindividualprovinces andterritories(exceptQuebec),Australia(both federal and individualstates),Kenya,NewZealand,South Africa,India, Myanmar,Malaysia,Bangladesh,Brunei,Pakistan,Singapore,Hong Kong, Antigua and Barbuda, Barbados,Bahamas, Belize, Dominica, Grenada, Jamaica, St Vincent and theGranadines, Saint Kitts and Nevis, Trinidad and Tobago, and manyother generallyEnglish-speakingcountriesorCommonwealthcountries(except the UK'sScotland, which isbijuridicial,andMalta). Essentially, every country that wascolonised at some time by England,Great Britain, ortheUnited Kingdomuses commonlaw except those that were formerly colonised by other nations,such asQuebec(which followsthelawofFrance in part),SouthAfricaandSriLanka(which followRoman Dutch law), where the prior civil lawsystem was retained to respect thecivil rightsof the localcolonists.Indiauses common law except in thestate ofGoawhich retains thePortuguesecivilcode. Guyana and Saint Lucia have mixed Common Law and CivilLaw systems.

Scotland

Scotlandis often said to use thecivil law system, but it hasa uniquesystemthat combines elements of an uncodifiedcivil law dating back to theCorpus Juris Civiliswith an element ofits own common law long predating theTreaty of UnionwithEngland in 1707 (seeLegalinstitutions of Scotland in the High Middle Ages), founded onthe customary laws of the tribes residing there. Historically,Scots common law differed in that the useofprecedentswas subjectto the courts' seeking to discover the principle that justifies alaw rather than searching for an example asaprecedent,^[78]andprinciples ofnatural justiceand fairnesshave always played a role in Scots Law. From the 19th century, theScottish approach to precedent developed into a stare decisis akinto that already established in England thereby reflecting anarrower, more modern approach to the application of case law insubsequent instances. This is not to say that the substantive rulesof the common laws of both countries are the same although in manymatters (particularly those of UK-wide interest) they are verysimilar. Comparablepluralistic (or 'mixed') legalsystemsoperate inQuebec,LouisianaandSouth Africa.

States of the United States (1600s on)

New York (1600s)

The state ofNewYork, which also has a civil law history fromitsDutchcolonialdays, also beganacodificationof its lawin the 19th century. The only part of this codification processthat was considered complete is known astheFieldCodeapplying tocivil procedure. The original colonyofNew Netherlandwas settled bythe Dutch and the law was also Dutch. WhentheEnglishcapturedpre-existing colonies they continued to allow the local settlers tokeep their civil law. However, the Dutch settlers revolted againstthe English and the colony wasrecapturedby theDutch. When the English finally regained control of New Netherlandthey forced, as a punishment unique in the history of the BritishEmpire, the English common law upon all the colonists, includingthe Dutch. This was problematic, as thepatroonsystem of land holding, based onthefeudalsystemand civil law, continued to operate inthe colony until it was abolished in the mid-19th century. Theinfluence ofRoman-Dutchlawcontinued in the colony well into the late19th century. The codification of a law of general obligationsshows how remnants of the civil law tradition in New York continuedon from the Dutch days.

Louisiana (1700s)

Uniquely among U.S. states,Louisiana's codified system,theLouisiana Civil Code, is based onprinciples of law from continental Europe instead of common law.These principles derive ultimately fromRomanlaw, transmitted through Spanish and French law, as the state'scurrent territory intersects the area of North America colonized bySpain and by France. Contrary to popular belief, the Louisiana codedoes not directly derive from theNapoleonic Code, as the latter was enacted in1804, one year after theLouisiana Purchase. However, the two codesare similar in many respects due to common roots.

Historically notable among the Louisiana code'sdifferences from common law is the role of property rights amongwomen, particularly in inheritance gained by widows.

California (1850s)

TheU.S.stateofCaliforniahas a system based oncommon law, but it hascodifiedthe law in themanner of thecivillawjurisdictions. The reason for theenactment of theCalifornia Codesin the19th century was to replace a pre-existing system based on Spanishcivil law with a system based on common law, similar to that inmost other states. California and a number ofotherWestern states, however, have retainedthe concept ofcommunitypropertyderived from civil law. TheCalifornia courts have treated portions of the codes as anextension of the common-law tradition, subject to judicialdevelopment in the same manner as judge-made common law. (Mostnotably, in the caseLi v. Yellow Cab Co., 13 Cal.3d 804(1975), theCalifornia SupremeCourtadopted the principleofcomparativenegligencein the face ofaCalifornia CivilCodeprovision codifying the traditionalcommon-law doctrine ofcontributory negligence.)

United States federal system (1789 and1938)

The United States federal government (as opposed to thestates) has a variant on a common lawsystem.United States federalcourtsonly act as interpreters of statutesand the constitution by elaborating and precisely defining thebroad language (connotation 1(b)above),but, unlike state courts, do not act as an independent source ofcommon law (connotation1(a)above).

Before 1938, the federal courts, like almost all othercommon law courts, decided the law on any issue where the relevantlegislature (either the U.S. Congress or state legislature,depending on the issue), had not acted, by looking to courts in thesame system, that is, other federal courts, even on issues of statelaw, and even where there was no express grant of authority fromCongress or the Constitution.

In 1938, the U.S. Supreme CourtinErie Railroad Co. v.Tompkins304U.S. 64, 78(1938), overruled earlierprecedent,^[79]andheld "There is no federal general common law," thus confining thefederal courts to act only as interpreters of law originatingelsewhere.E.g.,TexasIndustries v. Radcliff, 451U.S.630(1981)(without an express grant of statutory authority, federal courtscannot create rules of intuitive justice, for example, a right tocontribution from co-conspirators). Post-1938, federal courtsdeciding issues that arise under state law are required to defer tostate court interpretations of state statutes, or reason what astate's highest court would rule if presented with the issue, or tocertify the question to the state's highest court forresolution.

Later courts havelimitedErieslightly, tocreate a few situations whereUnited States federalcourtsare permitted tocreatefederal common lawruleswithout express statutory authority, for example, where a federalrule of decision is necessary to protect uniquely federalinterests, such as foreign affairs, or financial instruments issuedby the federal government.See,e.g.,Clearfield Trust Co.v. United States, 318U.S.363(1943)(giving federal courts the authority to fashion common law ruleswith respect to issues of federal power, in thiscasenegotiableinstrumentsbacked by the federalgovernment);seealsoInternational NewsService v. Associated Press,248U.S. 215(1918) (creating a cause of actionfor misappropriation of "hot news" that lacks any statutorygrounding, but that is one of the handful of federal common lawactions that survives today);NationalBasketball 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 ofwhether it survives under federal law). Except on Constitutionalissues, Congress is free to legislatively overrule federal courts'common law.^[80]

India (19th century and 1948)

TheConstitution ofIndiais the longest written constitution fora country, containing 395 articles, 12 schedules, numerousamendments and 117,369 words.

Indian Law is largely based onEnglishcommon law because ofthe long period ofBritish colonialinfluenceduring the period oftheBritish Raj.

After the failedrebellionagainstthe British in 1857, theBritish Parliamenttookover control of India from theBritish East India Company,andBritish Indiacame under thedirect rule oftheCrown. The British Parliament passedtheGovernment of India Act of1858to this effect, which set up thestructure of British government in India.^[81]Itestablished in Britain the office of theSecretary of State forIndiathrough whom the Parliament wouldexercise its rule, along with aCouncil of Indiato aidhim. It also established the office oftheGovernor-General ofIndiaalong with an Executive Council inIndia, which consisted of high officials of the BritishGovernment.

Much of contemporary Indian law shows substantial Europeanand American influence. Legislation first introduced by the Britishis still in effect in modified form today. During the drafting oftheIndian Constitution, laws from Ireland,the United States, Britain, and France were all synthesized toproduce a refined set of Indian laws. Indian laws also adhere totheUnited Nationsguidelinesonhuman rightslawandenvironmental law.Certaininternational trade laws, such asthose onintellectual property, are alsoenforced in India.

Indianfamilylawis complex, with each religion adhering toits own specific laws. In most states, registering marriages anddivorces is not compulsory. There are separate lawsgoverningHindus,Muslims,Christians,Sikhsand followers of other religions.The exception to this rule is in the stateofGoa, where aPortugueseuniform civil codeis inplace, in which all religions have a common law regardingmarriages, divorces and adoption.

AncientIndiarepresented a distinct traditionoflaw, and had an historically independent school oflegal theory and practice. TheArthashastra, dating from 400 BCE andtheManusmriti, from 100 CE, were influentialtreatises in India, texts that were considered authoritative legalguidance.^[82]Manu's central philosophy was toleranceandpluralism, and wascited acrossSoutheast Asia.^[83]Earlyin this period, which finally culminated in the creation of theGupta Empire, relations with ancient Greece and Rome were notinfrequent. The appearance of similar fundamental institutions ofinternational law in various parts of the world show that they areinherent in international society, irrespective of culture andtradition.^[84]Inter-Staterelations in the pre-Islamic period resulted in clear-cut rules ofwarfare of a high humanitarian standard, in rules of neutrality, oftreaty law, of customary law embodied in religious charters, inexchange of embassies of a temporary or semi-permanentcharacter.^[85]WhenIndia became part of theBritish Empire, there was a break intradition, and Hindu and Islamic law were supplanted by the commonlaw.^[86]Asa result, the present judicial system of the country deriveslargely from the British system and has little correlation to theinstitutions of the pre-British era.^[87]

There are 1160 laws as of September 2007.^[88]

Canada (1867)

Canada has separate federal and provincial legal systems.The division of jurisdiction between the federal and provincialParliaments is specified in the Canadian constitution.^[89]

Each province is considered a separate jurisdiction withrespect to common law matters, with its own procedural law,statutorily created provincial courts, superior trial courts withinherent jurisdiction, and culminating in the Court of Appeal ofthe province, which is the highest court in provincialjurisdiction, only subject to the Supreme Court of Canada in termsof appeal of their decisions. All but one of the provincesofCanadause a common law system(the exception beingQuebec, which uses a civil law system forissues arising within provincial jurisdiction, such as propertyownership and contracts).

Canadian federal statutes must use the terminology of boththe common law and civil law for those matters; this is referred toas legislative bijuralism.^[90]

Federal Courts operate under a separate system throughoutCanada and deal with narrower subject matter than superior courtsin provincial jurisdiction. They hear cases reserved for federaljurisdiction by the Canadian constitution, such as immigration,intellectual property, judicial review of federal governmentdecisions, and admiralty. The Federal Court ofAppealFederal Court ofAppealis the appellate level court in federaljurisdiction and hears cases in multiple cities, and unlike theUnited States, the Canadian Federal Court of Appeal is not dividedinto appellate circuits.^[91]

Criminal law is uniform throughout Canada. It is based onthe constitution and federal statutory Criminal Code, asinterpreted by theSupreme Court of Canada.

Nicaragua

Nicaragua's legal system also is a mixture of the EnglishCommon Law and the Civil Law.^{[citationneeded]}This situation was broughtthrough the influence of British administration of the Eastern halfof the country from the mid-17th century until about 1905,theWilliamWalkerperiod from about 1855 through 1857,USA interventions/occupations during the period from 1909 to 1933,the influence of USA institutions duringtheSomoza familyadministrations(1933 through 1979) and the considerable importation between 1979and the present of USA culture and institutions.^{[citationneeded]}

Israel (1948)

Israelhas a mixedsystem of common law and civil law. WhileIsraeli lawis undergoingcodification, its basic principles are inherited from the law oftheBritish Mandate ofPalestineand thus resemble those of Britishand American law, namely: the role of courts in creating the bodyof law and the authority of thesupreme court^[92]inreviewingand ifnecessary overturning legislative and executive decisions, as wellas employing the adversarial system. One of the primary reasonsthat theIsraeliconstitutionremainsunwrittenis the fearby whatever party holds power that creating a written constitution,combined with the common-law elements, would severely limit thepowers of theKnesset(which, following thedoctrine ofparliamentary sovereignty, holdsnear-unlimited power).^[93]

Roman Dutch Common law

Roman Dutch Commons law is a bijuridical or mixed systemof law similar to the common law systeminScotlandandLouisiana. Roman Dutch common lawjurisdictions includeSouth Africa,Botswana,Lesotho,Namibia,Swaziland,Sri-LankaandZimbabwe. Many of these jurisdictionsrecognise customary law, and in some, such as South Africa theConstitution requires that the common law be developed inaccordance with the Bill of Rights. Roman Dutch common law is adevelopment ofRoman Dutch lawby courts inthe Roman Dutch common law jurisdictions. During the Napoleonicwars the Kingdom of the Netherlands adopted theFrenchcode civilin 1809,however the Dutch colonies in the Cape of Good Hope and Sri Lanka,at the time called Ceylon, were seized by the British to preventthem being used as bases by the French Navy. The system wasdeveloped by the courts and spread with the expansion of Britishcolonies in Southern Africa. Roman Dutch common law relies on legalprinciples set out in Roman law sources such as Justinian'sInstitutes and Digest, and also on the writing of Dutch jurists ofthe 15th century such asGrotiusandVoet. In practice, the majority ofdecisions rely on recent precedent.

Alternatives to common law systems

The main alternative to the common law system isthecivil lawsystem,which is used inContinental Europe, and most of the restof the world. The contrast between civil law and common law legalsystems has become increasingly blurred, with the growingimportance ofjurisprudence(similartocase lawbut not binding) incivil law countries, and the growing importance of statute law andcodes in common law countries.

Examples of common law being replaced by statute orcodified rule in the United States include criminal law (since1812, U.S. courts have held that criminal law must be embodied instatute if the public is to have fairnotice),commerciallaw(theUniform CommercialCodein the early 1960s) and procedure(theFederal Rules of CivilProcedurein the 1930s andtheFederal Rules ofEvidencein the 1970s). But note that in eachcase, the statute sets the general principles, but the interstitialcommon law process (connotation 1(b)) determines the scope andapplication of the statute.

An example of convergence from the other direction isshown inSrlCILFIT and Lanificio di Gavardo SpA v Ministry of Health, inwhich theEuropean Court ofJusticeheld that questions it has alreadyanswered need not be resubmitted. This brought in a distinctlycommon law principle into an essentially civil lawjurisdiction.

The formerSoviet Blocand other Socialistcountries used aSocialistlawsystem.

Much of theMuslimworldusesSharia(alsocalledIslamiclaw).

Scholarly works

Sir WilliamBlackstoneas illustrated in hisCommentaries on theLaws of England.

Lord Chief JusticeEdward Coke, a 17th-centuryEnglishjuristandMember of Parliament, wrote severallegal texts that formed the basis for the modern common law, withlawyers in both England and America learning their law fromhisInstitutesandReportsuntilthe end of the 18th century. His works are still cited by commonlaw courts around the world.

The next definitive historical treatise on the common lawisCommentaries on theLaws of England, written by SirWilliam Blackstoneand first published in1765–1769. Since 1979, a facsimile edition of that first editionhas been available in four paper-bound volumes. Today it has beensuperseded in the English part of theUnitedKingdombyHalsbury's Laws ofEnglandthat covers both common and statutoryEnglish law.

While he was still on theMassachusetts SupremeJudicial Court, and before being named totheU.S. Supreme Court,JusticeOliver Wendell Holmes,Jr.published a short volumecalledThe Common Law, which remains a classic inthe field. Unlike Blackstone and the Restatements, Holmes' bookonly briefly discusses what the lawis;rather, Holmes describes the commonlawprocess. Law professorJohn Chipman Gray'sTheNature and Sources of the Law, an examination and survey of thecommon law, is also still commonly readinU.S. lawschools.

In the United States,Restatementsofvarious subject matter areas (Contracts, Torts, Judgments, and soon.), edited by theAmerican Law Institute, collect thecommon law for the area. The ALI Restatements are often cited byAmerican courts and lawyers for propositions of uncodified commonlaw, and are considered highly persuasive authority, just belowbinding precedential decisions. TheCorpus JurisSecundumis an encyclopedia whose main contentis a compendium of the common law and its variations throughout thevarious state jurisdictions.

Scotscommonlawcovers matters including murder and theft,and has sources in custom, in legal writings and previous courtdecisions. The legal writings used arecalledInstitutionalTextsand come mostly from the 17th, 18th and19th centuries. Examples include Craig,JusFeudale(1655) andStair,The Institutions of the Law ofScotland(1681).

See also

Early common law systems[edit]

Examples of modern common lawsystems[edit]

Common law as applied tomatrimony[edit]

Common vs. civil laws[edit]

Stages of common law trials[edit]

Slavery[edit]

References[edit]

1. Jumpup^Duhaime'sLaw Dictionary, "Definition of Common Law"
2. Jumpup^Washington Probate,"Estate Planning & ProbateGlossary",Washington (State)Probate,s.v."common law", 8 Dec. 2008:,
3. Jumpup^CharlesArnold-Baker,The Companion to BritishHistory, s.v. "English Law" (London: Loncross Denholm Press,2008), 484.
4. Jumpup^Marbury v.Madison,5U.S. 137(1803) ("It is emphatically theprovince and duty of the judicial department to say what the lawis. Those who apply the rule to particular cases, must of necessityexpound and interpret that rule. If two laws conflict with eachother, the courts must decide on the operation ofeach.")
5. Jumpup^http://www.britannica.com/EBchecked/topic/188090/English-law;British History: Middle Ages"CommonLaw – Henry II and the Birth of a State". BBC.
6. Jumpup^K. G. Balakrishnan(23–24March 2008).AnOverview of the Indian Justice DeliveryMechanism(Speech). InternationalConference of the Presidents of the Supreme Courts of the World.Abu Dhabi. "India, being a common law country,derives most of its modern judicial framework from the Britishlegal system."
7. Jumpup^"...."ina common law jurisdiction such asours""(PDF).
8. Jumpup^"TheCommon Law in the World: the Australian Experience".W3.uniroma1.it.
9. Jumpup^"Parliamentof Barbados: one of the oldest Constitutions in theCommonwealth".
10. Jumpup^While historicallytheiuscommunebecame a secure point of referencein continental European legal systems, in England it was not apoint of reference at all.David JohnIbbetson,Common Law and IusCommunep.20 (2001)ISBN978-0-85423-165-2
11. ^Jumpup to:^abGarner2001, p.177
12. ^Jumpup to:^abSalmond1907, p.32
13. ^Jumpup to:^abGarner2001, p.178
14. Jumpup^"5. The judges areforbidden to pronounce, by way of general and legislativedetermination, on the causes submitted tothem."Codeof Napoleon, Decree of March 5, 1803, Law 5
15. Jumpup^Federal Rule ofCivil Procedure, Rule 2("There is one form ofaction—the civil action.") (1938)
16. Jump up^Friedman2005, p.xix
17. Jumpup^"In Suits at common law... the right oftrialby juryshall be preserved, and no fact triedby a jury shall be otherwise reexamined in any Court of the UnitedStates, than according to the rules of the common law."
18. Jumpup^Jefferson, Thomas(February 10, 1814)."Letterto Dr. Thomas Cooper". Retrieved 11 July 2012. "Authorities forwhat is common law may therefore be as well cited, as for any partof the Lex Scripta, and there is no better instance of thenecessity of holding the judges and writers to a declaration oftheir authorities than the present; where we detect themendeavoring to make law where they found none, and to submit us atone stroke to a whole system, no particle of which has itsfoundation in the common law. For we know that the common law isthat system of law which was introduced by the Saxons on theirsettlement in England, and altered from time to time by properlegislative authority from that time to the date of Magna Carta,which terminates the period of the common law, or lex non scripta,and commences that of the statute law, or Lex Scripta. Thissettlement took place about the middle of the fifth century. ButChristianity was not introduced till the seventh century; theconversion of the first christian king of the Heptarchy havingtaken place about the year 598, and that of the last about 686.Here, then, was a space of two hundred years, during which thecommon law was in existence, and Christianity no part ofit."
19. Jumpup^Jefferson, Thomas (June5, 1824)."LetterTo Major John Cartwright". Retrieved 11 July 2012. "I was gladto find in your book a formal contradiction, at length, of thejudiciary usurpation of legislative powers; for such the judgeshave usurped in their repeated decisions, that Christianity is apart of the common law. The proof of the contrary, which you haveadduced, is incontrovertible; to wit, that the common law existedwhile the Anglo-Saxons were yet Pagans, at a time when they hadnever yet heard the name of Christ pronounced, or knew that such acharacter had ever existed."
20. Jumpup^E.g.,LectricLaw Dictionary: That which derives its forceand authority from the universal consent and immemorial practice ofthe people. It is at best obsolete. It is both underinclusive andoverinclusive. Lawyers never rely on this defintion.
21. Jumpup^e.g.,Exparte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf.1991) (explaining the hierarchy of precedent binding on tribunalsof the United States Patent Office)
22. Jumpup^Frederic R. Kellog, Law,Morals, and Justice Holmes, 69 Judicature 214 (1986).
23. Jumpup^Benjamin N. Cardozo, TheNature of the Judicial Process 22–23 (1921).
24. Jumpup^The beneficial qualitiesof the common law's incrementalist evolution was most eloquentlyexpressed by the futureLord Mansfield, then Solicitor General Murray,in the case ofOmychund v. Barker, whocontended that "a statute very seldom can take in all cases;therefore the common law, that works itself pure by rules drawnfrom the fountain of justice, is for that reason superior toanact of parliament." I Atk. 21, 33, 26 Eng.Rep. 15, 22–23 (Ch. 1744)
25. Jumpup^Winterbottom v.Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519(Exchequer of pleas 1842)
26. Jumpup^Thomasv. Winchester, 6 N.Y. 397 (N.Y. 1852)
27. Jumpup^Statler v. Ray Mfg.Co., 195 N.Y. 478, 480 (N.Y. 1909)
28. Jumpup^Cadillac Motor Car Co.v. Johnson, 221 F. 801 (2nd Cir. 1915)
29. Jumpup^MacPhersonv. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y.1916)
30. Jumpup^Meister v. Moore,96 U.S. 76 (1877) ("No doubt a statute may take away a common lawright, but there is always a presumption that the legislature hasno such intention unless it be plainly expressed.")
31. Jumpup^E.g.,UniformCommercial Code, Article 2, on Contracts for the Sales ofGoods
32. Jumpup^Model Penal Codeas adoptedin several states, for example,New York's PenalLaw
33. Jumpup^Graham Hughes, Common LawSystems, § VII,Morrison1996, pp.23–24
34. Jumpup^To consider oneexample,Lemon v. Kurtzman, 403 U.S. 602(1971), resolves one part of the tension between the"establishment" and "free exercise" clauses of the First Amendmentwith a three part test: a government-sponsored message violates theEstablishment Clause if: (1) it does not have a secular purpose;(2) its principal or primary effect advances or inhibits religion;or (3) it creates an excessive entanglement of the government withreligion..
35. Jumpup^Johnson v.Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, ___(1968)
36. Jumpup^E.g.,SouthCorp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (enbancin relevant part) (explaining order ofprecedent binding on the United States Court of Appeals for theFederal Circuit);Bonner v. City of Prichard,Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc) (afterthe Eleventh Circuit was split off from the Fifth Circuit, adoptingprecedent of Fifth Circuit as binding until overruled by theEleventh Circuiten banc: "The [pre-split]Fifth followed the absolute rule that a prior decision of thecircuit (panel oren banc) could not beoverruled by a panel but only by the courtsittingen banc. The Eleventh Circuitdecides in this case that it chooses, and will follow, thisrule.");Ex parte Holt, 19 USPQ2d 1211,1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchyof precedent binding on tribunals of the United States PatentOffice).
37. Jumpup^83 Cr App R 191, 73 CrApp R 266
38. Jumpup^See, e.g., Yeo Tiong Min,"A Note onSome Differences in English Law, New York Law, and SingaporeLaw" (2006).
39. Jumpup^Theodore Eisenberg &Geoffrey P. Miller, The Flight to New York: An Empirical Study ofChoice of Law and Choice of Forum Clauses in Publicly-HeldCompanies’ Contracts (2008). New York University Law and EconomicsWorking Papers. Paper 124,http://lsr.nellco.org/nyu_lewp/124(basedon a survey of 2882 contracts, "New York law plays a role for majorcorporate contracts similar to the role Delaware law plays in thelimited setting of corporate governance disputes. ... New York’sdominance is striking. It is the choice of law in approximately 46percent of contracts," and if merger contracts excluded, overhalf)
40. Jumpup^Eisenberg & Miller at19–20 (Delaware is chosen in about 15% of contracts, "Delawaredominates for one type of contract—[merger] trust agreements. ...The dominance of Delaware for this specialized type of contract isapparently due to the advantages and flexibility which Delaware’sbusiness trust statute.")
41. Jumpup^Eisenberg & Miller at19, only about 5% of commercial contracts designate Californiachoice of law, where nearly 50% designate New York.
42. Jumpup^Osley,Richard."Londonbecomes litigation capital of the world".TheIndependent(London).. London is also forumfor many defamation cases, because U.K. law is moreplaintiff-friendly—in the United States, the First Amendmentprotection for freedom of the press allows for statementsconcerning public figures of questionable veracity, where in theU.K., those same statements support a judgment forlibel.
43. Jumpup^U.S. Internal RevenueService, Taxpayer Advocate Service, 2008 Report toCongress,http://www.irs.gov/pub/irs-utl/08_tas_arc_msp_1.pdf
44. Jumpup^Outsidethe lawThe NationalArchives
45. Jumpup^Jeffery, Clarence Ray(1957). "The Development of Crime in Early EnglishSociety".Journal of Criminal Law, Criminology,and Police Science(The Journal of CriminalLaw, Criminology, and Police Science, Vol. 47, No.6)47(6):647–666.doi:10.2307/1140057.JSTOR1140057.
46. Jumpup^WinstonChruchill,A History of the English SpeakingPeoples, Chapter 13,The English CommonLaw
47. Jumpup^seeOliver Wendell Holmes,Jr.,The Common Law, Lecture I, sec. 2,"In Massachusetts today...there are some (rules) which can only beunderstood by reference to the infancy of procedure among theGerman tribes."
48. ^Jumpup to:^ab "CommonLaw".Catholic Encyclopedia. New York:Robert Appleton Company. 1913.
49. Jumpup^WilliamBurnham,Introduction to the Law and LegalSystem of the United States, 4th ed. (St. Paul, Thomson West,2006), 42.
50. Jumpup^E.g.,MacPhersonv. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916)(discussed above, adjudicating the tort of negligence that existedin no statute, and expanding the law to cover parties that hadnever been addressed by statute); Hadley v Baxendale (1854) 9 Exch341 (defining a new rule of contract law with no basis instatute);Marbury v. Madison, 137 5 U.S.137 (1803) ("It is emphatically the province and duty of thejudicial department to say what the law is."); Alexander Hamilton,THE FEDERALIST, Nos. 78 and 81 (J. Cooke ed. 1961), 521–530, 541–55("The interpretation of the laws is the proper and peculiarprovince of the courts. A constitution, is, in fact, and must beregarded by the judges, as a fundamental law. It therefore belongsto them to ascertain its meaning, as well as the meaning of anyparticular act proceeding from the legislative body.");seerule againstperpetuitiesfor a judicially created laworiginating in 1682 that governs the validity of trustsandfutureinterestsinreal property,Rule in Shelley'sCasefor a rule created by judges in 1366 orbefore, andlifeestateandfeesimplefor rules of real property ownershipthat were judicially created in the late 1100s as the crown beganto give law-making power to courts.
51. Jumpup^Southern Pacific Co.v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J.,dissenting).
52. Jumpup^E.g., R. C. vanCaenegem,The Birth of the English CommonLaw89–92 (1988).
53. Jumpup^E.g.,Peter Birks, GrantMcLeod,Justinian'sInstitutes7 (1987).
54. Jumpup^E.g., George E. Woodbine(ed.), Samuel E. Thorne (transl.),Bracton onthe Laws and Customs of England, Vol. I (Introduction) 46(1968); Carl Güterbock,Bracton and his Relation to the RomanLaw35–38 (1866).
55. Jumpup^Stephen P.Buhofer,Structuring the Law: The Common Lawand the Roman Institutional System, Swiss Review ofInternational and European Law (SZIER/RSDIE) 5/2007,24.
56. Jumpup^PeterStein,Continental Influences on English Legalthought, 1600–1900,inPeterStein,The Character and Influence of the RomanCivil Law223et seq.(1988).
57. Jumpup^See generally Stephen P.Buhofer,Structuring the Law: The Common Lawand the Roman Institutional System, Swiss Review ofInternational and European Law (SZIER/RSDIE) 5/2007.
58. Jumpup^Lammi, Glenn G.; Chang,James (December 17, 2004)."Michigan High CourtRuling Offers Positive Guidance on Challenges to Tort ReformLaws".LegalBackgrounder(Washington LegalFoundation)19(46).ISSN1056-3059.
59. Jumpup^Milestones! 200 Yearsof American Law: Milestones in Our Legal History. By JethroKoller Lieberman. Published by West, 1976. Original from theUniversity of California. Digitized Jun 11,2008.ISBN978-0-19-519881-2, pg. 16[1]
60. Jumpup^New YorkConstitution of 1777via Avalon ProjectatYaleLaw School.
61. Jumpup^AlexanderHamilton,Federalist84(1788).
62. Jumpup^Nathan Dane,6General Abridgment and Digest of AmericanLaw§182, art. 5, 230 (Cummings, Hilliard& Co. 1823).
63. Jumpup^Washington LegalFoundation v. Legal Foundation ofWashington,271F.3d 835(9th Cir. 2001).
64. Jumpup^Quebec North Shore PaperCo. v. Canadian Pacific (1976), [1977] 2 S.C.R 1054; St-Hilaire v.Canada (Attorney General), 2001 FCA 63, [2001] 4 FC 289
65. Jumpup^An Act to repealcertain parts of an Act passed in the Fourteenth Year of HisMajesty's Reign, intituled an Act for making more effectualProvision for the Government of the Province of Quebec in NorthAmerica; and to introduce the English Law, as the Rule of Decisionin all matters of controversy relative to Property and CivilRights, S.U.C. 1792 (32 Geo. III), c. 1.
66. Jumpup^TheNorth-West Territories Act, R.S.C.1885, c. 50, s.11.
67. Jumpup^AlbertaAct, S.C. 1905, c. 3, s. 16.
68. Jumpup^SaskatchewanAct, S.C. 1905, c. 42, s. 16.
69. Jumpup^"ChapterI, Section 8 of Hong Kong Basic Law". Basiclaw.gov.hk.2008-03-17.
70. Jumpup^Holmes, Jr., OliverWendell (1897)."The Path of theLaw".Harvard LawReview10(8): 457,469.doi:10.2307/1322028.
71. Jumpup^Acree v. Republic ofIraq, 370 F.3d 41 (D.C. Cir. 2004) (Roberts, J.,concurring).
72. Jumpup^Salmond1907, p.34
73. ^Jumpup to:^abLobban,M. (2004)."Preparingfor Fusion: Reforming the Nineteenth-Century Court of Chancery,Part II".Law and HistoryReview.University of Illinois.
74. Jumpup^E.g.,Markmanv. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) ("[W]e[the U.S. Supreme Court] have understood that the right of trial byjury thus preserved is the right which existed under the Englishcommon law(connotation 3)when theAmendment was adopted. In keeping with our longstanding adherenceto this 'historical test,' we ask, first, whether we are dealingwith a cause of action that either was tried atlaw(connotation 3)at the timeof the founding or is at least analogous to one that was. If theaction in question belongs in the law category, we then ask whetherthe particular trial decision must fall to the jury in order topreserve the substance of the common-law right as it existed in1791." citations and quotations omitted, holding thatinterpretation of the scope of a patent had no analogy in 1790, andis thus a question to be decided by a judge, not ajury)
75. Jumpup^John Jay McKelvey,Principles of Common Law Pleading (1894).
76. Jumpup^Note that the remainderof the "common law" discussed in the rest of the article remainedintact; all that was abolished were the highly technicalrequirements for language of the paper provided by the plaintiff tothe defendant to initiate a case.
77. Jumpup^At least in the U.S.,practicing lawyers tend to use "law professor" or "law reviewarticle" as a pejorative to describe a person or work that isinsufficiently grounded in reality or practicality—every younglawyer is admonished repeatedly by senior lawyers not to write "lawreview articles," but instead to focus on the facts of the case andthe practical effects of a given outcome.
78. Jumpup^Stair MemorialEncyclopedia
79. Jumpup^Swift v.Tyson,41U.S. 1(1842).InSwift, theUnited States Supreme Courthadheld that federal courts hearing cases brought undertheirdiversity jurisdiction(allowing themto hear cases between parties from different states) had to applythe statutory law of the states, but not the common law developedby state courts. Instead, the Supreme Court permitted the federalcourts to make their own common law based on general principles oflaw.Erie v.Tompkins,304U.S.64(1938).ErieoverruledSwiftv. Tyson, and instead held that federal courts exercisingdiversity jurisdiction had to use all of thesamesubstantive lawas thecourts of the states in which they were located. AstheErieCourt put it,there is no "general federal common law", the key word herebeinggeneral. This history iselaborated infederal common law.
80. Jumpup^City of Boerne v.Flores,521U.S. 507(1997) (invalidatingtheReligious FreedomRestoration Act, in which Congress had attempted to redefinethe court's jurisdiction to decide constitutionalissues);Milwaukee v.Illinois,451U.S. 304(1981)
81. Jumpup^"Official,India".World Digital Library. 1890–1923.
82. Jumpup^Glenn2000, p.255
83. Jumpup^Glenn2000, p.276
84. Jumpup^Alexander, C.H. (July1952). "International Law in India".TheInternational and Comparative LawQuarterly1(3):289–300.ISSN0020-5893.
85. Jumpup^Viswanatha,S.T.,International Law in Ancient India,1925
86. Jumpup^Glenn2000, p.273
87. Jumpup^Jain2006, p.2
88. Jumpup^"IndianLegislation". Commonlii.org.
89. Jumpup^ConstitutionAct, 1867, s. 91(10), (18)
90. Jumpup^"CanadianLegislative Bijuralism Site At the Crossroads of our LegalDiversity". Canada.justice.gc.ca.
91. Jumpup^"Federal Court of Appeal -Home". Fca-caf.gc.ca.
92. http://www.lawofisrael.com/israeli-supreme-court-decisionsSupremecourt decisions database
93. Jumpup^Mahler, GregoryS.(2004).Politics andGovernment in Israel: The Maturation of a Modern State. NewYork:Rowman & Littlefield.p.126.ISBN978-0-7425-6827-3.

Further reading

External links

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