What is Common Law

“the common law was an ‘antient collection of unwritten maxims and customs“

English law is said to be rooted in common law. Common law grew from the customs of the English people. It was not made by legal officials, as statutes are. The role of legal officials – particularly judges – was to interpret and declare legal custom; their judgments provided evidence of it. They did not make it or invent it. This mode of development through continual interpretation and reinterpretation of legal inheritance was, according to common lawyers, better adapted to social complexity, change.

After the eleventh-century Norman conquest of England, the King’s Courts gradually extended their sway throughout the kingdom. Institutionally this was at the expense of a variety of local assemblies, tribunals, customary bodies and practices. Substantively, too, the centralized application of written laws had profound transformative effects on oral customs and traditions, even when the courts claimed to be applying customary law (Constable 1994). The law dispensed by the King’s Courts came to be known as the common law. 

Now ‘common law’ is a global term for the legal tradition that was developed in Britain by these courts over centuries, and spread to its legal offshoots, such as the USA, Canada, Australia and New Zealand. The common law, in this sense, is most often contrasted with the Civil  Law of continental Europe.

In a second and narrower usage, internal to the common law tradition, the law dispensed by the common law courts was distinguished from the specific ‘equitable’
interventions by the Lord Chancellor and the Court of Chancery to supplement traditional common law remedies .

Third, when statutes enacted by Parliament became prominent sources of English law, they were also distinguished from the common law developed by the courts. This third distinction persists, though statutes are more and more general in scope and effect and in many areas have come to override the common law.

English common law practice had many features that distinguished it from other legal traditions. It insisted – to the dismay of Hobbes, Bentham and other legal positivists – that the common law, far from being made by any identifiable institutions or persons – kings or parliaments or even judges – grew from the customs of the English people. As Sir William Blackstone put it in the eighteenth century, the common law was an ‘antient collection of unwritten maxims and customs’ (Blackstone [1765-9] 1979, vol. 1: 17).

Notwithstanding their insistence that the common law reflects and rests upon the customs of the English people, not every custom was law. Customs became recognizably legal in the common law when legal officials recognized them (though this was not, for common lawyers, the source of their authority). Coke, Hale and Blackstone all paid great attention to the activities of such officials. However, whereas legal positivists insisted upon the primacy of legislators, the common law tradition did not. Instead its focus was on the common law judge. The declaration, determination, refinement, alteration and transformation characteristic of common law development were primarily the work of the judges of the common law courts: ‘the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land’ (Blackstone [1765-9] 1979, vol. 1: 69).

In nineteenth century common law practitioners tended not to think of the law as a collection of substantive rules at all. Rather it was a system of reasoning, and a collection of procedures and remedies, to be adapted to cases as they came before the court. Substance, on this view, came ‘from below, in a constant feeding from society’ (Lobban 1991: 79).

On the other hand, common law theorists did believe that there were substantive rules of the common law, but did not regard them as simply to be applied or made. In any
event, unlike statutes, they did not come in a fixed and delimited textual form, ready to be applied. The meaning and bearing of customs and precedents was rather of continual
argument, interpretation and reinterpretation. More generally, common law theorists regarded the law, not as a systematic collection of discrete rules, but as a traditional or
customary order, of language, thought, maxims, principles, understandings, values and rules – with its own ways of knowing, thinking and arguing, handed down over generations.
Lawyers and judges are trained and participate in this order, and interpret it. The judges are the authoritative guardians of this tradition. They conserve it, bring it to bear on
particular cases, adapt, apply and transmit it. New things are said and done, of course, on this ‘Argonauts Ship’ – but by experts working from inside, not out, with materials
already on board, and with a keen and experienced sense of the risks involved in straying too far.

However, the common law judges are not merely participants in the legal tradition; they are experts in the law. This is an expertise not available to everyone without long experience and training. Rather, as Hale observed, ‘men are not borne Comon Lawyers’ (Hale 1966: 505). Without training and long experience they lack what Coke called ‘the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it’ (Coke [1608]
1907: 1342-3).

BIBLIOGRAPHY

1. Blackstone, Sir W. (1765-9) Commentaries on the Laws of England, 4 vols, Oxford: Clarendon Press, 1787; Chicago, IL: Chicago University Press, 1979.(The 1979 edition
   contains valuable editorial introductions to each volume.)
2. Burgess, G. (1992) The Politics of the Ancient Constitution, London: Macmillan. (Excellent account of English political and legal thought in the seventeenth century, with thorough and thoughtful revisions to Pocock’s theses about the ‘common law mind’.)
3. Coke, Sir E. (1608) ‘Prohibitions del Roy’, in 77 English Reports, London: Stevens and Sons, 1907, 1342-3.(The case was 1608, but is incorporated in the 1907 English
   Reports.)
4. Constable, M. (1994) The Law of the Other, Chicago, IL: University of Chicago Press.(Study of transformation of the customary institution of the ‘mixed jury’ with
   interesting reflections on the replacement of customary law by ‘official’ law.)
5. Hale, Sir M. (1665) ‘Considerations Touching the Amendment or Alteration of Lawes’, in F. Hargrave (ed.) A Collection of Tracts Relating to the Law of England, vol. 1, 1787, 249-89; repr. Oxford: Professional Books, 1982.(See §2 above for discussion.) (1713) The History of the Common Law of England, ed. C.M. Gray, Chicago, IL: University of Chicago Press, 1971. (Published posthumously; printed three times, 1713, 1716, 1739, virtually as it stood in manuscript and numerous times thereafter with editorial additions.)
   (1966) ‘Sir Matthew Hale’s Criticisms on Hobbes’s Dialogue of the Common Laws’, repr. in Sir W. Holdsworth, A History of English Law, vol. 5, 2nd edn, London:
   Methuen, 419-513.(Unpublished in Hale’s lifetime.)
6. Kelley, D.R. (1990) The Human Measure, Cambridge, MA: Harvard University Press.(Masterly historical discussion of the role of custom in European legal and social theory.)
7. Lieberman, D. (1989) The Province of Legislation Determined, Cambridge: Cambridge University Press.(Excellent discussion of eighteenth-century English and Scottish, common law and positivist, views on the rival claims of common law and legislation – especially as sources of law reform.)
8. Lobban, M. (1991) The Common Law and English Jurisprudence, 1760-1850, Oxford: Clarendon Press.(Study of the tensions between common law practitioners’
   remedies-focused assumptions about the nature of the common law and the more rule-based focus of eighteenth-century common law system builders, such as Blackstone, and critics of the common law tradition, such as Bentham.)
9. Pocock, J.G.A. (1987) The Ancient Constitution and the Feudal Law: A Reissue with a Retrospect, Cambridge: Cambridge University Press.(Classic study of the ‘common law mind’ with extensive reply to critics of the first edition.)