Sociology Index

COMMON LAW

Common law derives from feudal England where it had become the practice for the King to resolve disputes in accordance with local custom. Customs which were recognized throughout the country were called common custom and decisions made by the King and by subsequent courts set up to settle disputes became known as Common law. The common law was "common" to all the king's courts across England.

The British Empire spread the English legal system to its historical colonies. These "common law systems" are legal systems that give great precedential weight to common law. One-third of the world's population lives in common law jurisdictions or in systems mixed with civil law.

In common law, law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of Common Law is that it arises as precedent. Common law court looks to past precedential decisions of relevant courts, and applies the principles of those past cases to the current facts.

Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process. Stare decisis, similar facts will yield similar results, lies at the heart of all common law systems.

Back to the Future? Unearthing the Theory of Common Law Constitutionalism - Thomas Poole, School of Law, University of Nottingham. Rise of a new influential, theory of public law: common law constitutionalism. The theory can be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence of judicial review; constitutionalization of the EU; and trends towards globalization. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity. 

We Do This At Common Law But That In Equity - Andrew Burrows, St Hugh's College Oxford.
This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. Where common law and equity co-exist coherently, and where the historical labels of common law and equity remain useful terminology. Where common law and equity co-exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. Where common law and equity do not co-exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product.

Information, Litigation, and Common Law Evolution 
Keith N. Hylton, Boston University 
It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. Although the model does not suggest an unambiguous trend toward efficient legal rules, it does show how private information from litigants becomes embodied in common law, an important part of the theory of efficient legal rules.

The Common Law in Cyberspace
by Tom W. Bell - 97 Mich. L. Rev. 1746 (1999).

Abstract: Although Law and Disorder in Cyberspace gets a great deal right in boldly proposing to abolish the FCC and rely on common law courts to regulate the telecosm, an untenable distinction between the process and substance of common law runs through the text. Peter Huber accords antitrust law, despite its reliance on legislation and inconsistency with common law proper, inexplicable deference.

Contrary to Huber's account, moreover, common law consistently excused telephone companies from any general obligation to carry their competitors' traffic. To the extent that copyright represents a response to market failure, it perhaps infringes on common law rights for good reason. But infringe it does. I thus propose that copyright retreat where common law rights suffice to encourage creative expression.

Common Law, Equity, and American Public Administration 
Richard T. Green, University of Utah.
This article evaluates the claims of those who advocate the use of common law as a corrective to the statutory and rule-based excesses of the American administrative state. Their claims are assessed in light of common-law history and in terms of current administrative law. Although many claims are exaggerated or simply wrong, there are some aspects of common law that deserve attention in public administration. A model with five features of common-law practice is presented for public administrators to use in improving an agency’s decision making under law.