What common law is

(Mainly British usage)

The term common law has several meanings, such as:

1. (in contrast to local law)

DEF The law common to the whole of England after 1066, as opposed tolocal law, which had existed before 1066 and continued to exist to some extent after 1066. This common law was the law made in the king’s courts, especially under Henry II (1154-1189), when judges were sent out around the country and imposed a single central system of law instead of the local systems and customs.

EG The common law was developed gradually over a period of time, beginning in 1066. Eventually it became a rigid system and ceased to develop to any great extent.

TR This could be translated as das gemeine Recht Englands, but be careful not to equate it to the gemeines Recht of the Continent.

This term is only used in connection with legal history; it explains the origin of the term (common means common to the whole country)

2. (in contrast to legislation)

DEF Law made by the decisions of judges, as opposed to legislation (statutes), which is law made by Parliament. This meaning arose because the law of England was often made by judges. A synonym is case law: much of English law is case law.

EG Murder is a common-law offence (its definition is contained in an old legal case report where the judge defined the offence of murder in the course of giving his opinion). Theft, on the other hand, is a statutory offence (it’s definition is laid down in a statute, the Theft Act 1978).

TR Can be translated as Rechtsprechung.

3. (in contrast to equity)

DEF The law developed by the old common law courts, mainly between the 12th and 14th centuries, as opposed to equity, a separate legal system which grew up later and was developed first by the Chancellor and later by the Court of Chancery).

EG The common law became so rigid that people used to apply to the Chancellor for a remedy. As a result, equity was developed. However, equity eventually became just as rigid as the common law.

EG At law trusts were not recognized, but in equity they were.

EG Legal and equitable remedies.

TR Can be translated as Common Law vs. Equity-Recht / Billigkeitsrecht. The term Billigkeitsrecht is used in German in this meaning of equity in English law, but be careful when translating into other languages: don’t assume that just because French has a word équité, it works here.

Note that law /legal sometimes refers to common law. Legal and equitable remedies – remedies is difficult to translate too, but perhaps Klagebegehren unter Common Law und Billigkeitsrecht. Traditionally, damages is the only common-law remedy and anyone who wins a case where damages are awarded has the right to those damages. Equitable remedies, such as specific performance (Leistung des vertraglich geschuldeten?) and injunctions, are at the discretion of the court. The translation of legal and equitable remedies is one of the oldest chestnuts for translation mailing lists and forums.

4. (in contrast to other legal systems)

DEF The law of England and Wales and all other legal systems based on it.

EG New York, England and Wales and Australia are all common-law countries.

EG Ireland has a common-law system and France a civil-law system.

TR This could be translated as angloamerikanisches Recht, contrasted with kontinentaleuropäisches Recht / römisches Recht (civil law).

For further notes read on:The above is somewhat indebted to Glanville Williams, Learning the Law (ISBN 0 421 74420 0), a fascinating collection of information for anyone interested in English law, and to David M. Walker, The Oxford Companion to Law, 1980 (worth getting secondhand). Walker also has 5 and 6:

5.

(in contrast to local customs in church law)

DEF The general law of the Church – term used by the canonists, jus commune.

6.

(in contrast to ecclesiastical law)

DEF Non-ecclesiastical law.

and points out that in French and German law common law (droit commun, Gemeinrecht) mean law common to the whole area of the State as distinct from local or regional customs or peculiarities.

7.

(contrasted to statute or codified law in the USA)

DEF This is similar to 2. above, but in the American context the common law means a system brought from England. My old edition of LaFave and Scott on Criminal Law (second ed.) describes how the original colonists brought the English common law with its then existing statutory modifications, both civil and criminal, so far as applicable to conditions in America. This ‘common law with statutory modifications’, sometimes contained in a ‘reception statute’, is the law of most states (except Louisiana) unless it is expressly or impliedly repealed by statute.

8.

A common-law wife has different meanings in different jurisdictions. In some US states and in Scotland, where common-law marriage exists, it can be proved after the death of one partner that there was a genuine marriage ‘by habit and repute’ (the Scottish term) and therefore the other partner can inherit. In England and Wales, and possibly even in the whole of Britain in newspaper usage it means an unmarried partner. I gather it was widely used in Ireland when divorce was not permitted.

Final remark: the term common law is sometimes used in a mixture of more than one of the above senses. Thus Glanville Williams writes that the law of England may be seen as comprising three great elements: legislation, common law and equity. He says he is mixing senses 2 and 3 above. But this does not mean that equity is never contained in statutes, nor that common law as opposed to civil law never has statutes.

4 thoughts on “What common law is

  1. Excellent review.

    Trick questions: are Canada & Mauritius common-law or civil-law systems? Mauritius & Reunion in the Indian Ocean use French substantive law but apply English civil & criminal procedure to litigation. Hence law students from those islands study both in the UK & France.

  2. Zu den hybriden Rechtssystemen zaehlt auch Malta. Interessanterweise gehoert zu den Quellen des Rechts dort nicht nur das erst vor 200 Jahren eingefuehrte angelsaechsische, sondern auch der Code de Rohan, ein Vorgaenger des franzoesischen Code Civil. Ich erinnere mich auch an Quellen in italienischer Sprache, aber bin mir nicht mehr sicher, ob sie italienischen oder maltesischen Ursprungs sind. Jedenfalls werden sie regelmaessig neben den maltesischen und englischen Texten zitiert. Eine wahre Fundgrube fuer linguistisch Interessierte! Irgendwie schaffen es die Malteser, die kontintalen und angelsaechsischen Systeme miteinander in Einklang zu bringen, rechtlich wie sprachlich.

  3. Scottish students learn English law too, of course, and I used to translate for a professor of law who studied in Vienna but is a professor in Germany – OK, Germany and Austria are closer.

    I have enough trouble with defining the common law without thinking about the Maltese language!

    Walker says Maltese law is based largely on the Code Napoléon and other French codes and was codified mainly between 1854 and 1873. Some commercial and maritime matters are regulated by English principles and procedure is on English lines. The principle of stare decisis does not hold!

    I see also that, while mentioning Louisiana and Quebec frequently, I have shamefully neglected Mauritius. I imagine it is one of the frequent topics of barristers at lunch. Walker omits, but Google has put me right.

  4. Mauritius and Reunion in the Indian Ocean are NOT in fact a Barristers’ dining-hall topic! Having had many fellow-bar students and bar exam tutors from those islands, I wondered why they were speaking – a patois – French amongst themselves, but studying law in England.

    The numbers reached such a proportion that a Mauritian-run law & Bar school in London has re-exported itself back to the islands.

    I think it is informative in the common v. civil law debate to take hybrid examples like Malta, Scotland, Canada & Mauritius etc. to show that a compromise can work perfectly well.

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