The term common law is widely known outside England and Wales, to use the word known loosely, for sometimes the term is misunderstood.
Common law is not custom (Gewohnheitsrecht). Custom may play a role in English law, as it does in German law, but it isnt called common law. Originally, common law was developed by the kings courts for the whole of England, and some of what was incorporated in it was general custom, but not local custom. And it was sanctioned by the kings courts. I therefore find it confusing to call it custom.
Heres the Oxford Dictionary of Law
on custom as its understood in English law today:
bq. A practice that has been followed in a particular locality in such circumstance that it is to be accepted as part of the law of that locality. In order to be recognized as customary law it must be reasonable in nature and it must have been followed continuously, and as if it were a right, since the beginning of legal memory. Legal memory began in 1189, but proof that a practice has been followed within living memory raises a presumption that it began before that date.
Common law is not the French droit commun (Bridge translates droit commun as general law; ordinary or existing law – Council of Europe FR>EN Legal Dictionary, ISBN 92 871 2496 5)
Common law is not German gemeines Recht or ius commune; above all, its content is completely different.
The German Wikipedia defines gemeines Recht as the totality of customary law that is generally recognized as applicable in a particular territory.
Common law has several meanings, and it is usually wrong to take only one of those definitions as a basis. For example, to describe common law as judge-made law (Richterrecht) has some truth, but to say it is never contained in statutes is misleading: it depends which flavour of the term is being referred to whether that is true or not.
The German Wikipedia also defines Common law, but not well. I would alter it, but I dont know where to start. Perhaps I should just alter the spelling of Präzedenz. And perhaps this is actually OK, as a definition of what Germans believe common law to be.
bq. Common Law
aus Wikipedia, der freien Enzyklopädie
bq. Das Common Law ist das in den anglophonen Ländern teilweise fortgeltende Gemeine Recht. Das Common Law wird als Gewohnheitsrecht größtenteils überliefert. Zumeist wird daher zur Urteilsfindung auf Präsedenzfälle (sog. case law) zurückgegriffen. Nur ein geringer Anteil ist kodifizert (sog. statutory law). Das Common Law umfasst alle Rechtsgebiete, also neben dem Zivilrecht (civil law) auch das Strafrecht und das Öffentliche Recht.
bq. Infolge der Angleichung des Rechts des Vereinigten Königreiches und Irlands an das EG-/EU-Recht besteht in diesen Ländern eine zunehmende Praxis der Kodifizierung bisheriger Rechtsgrundsätze (insbesondere im Strafrecht, um dem Bestimmtheitsgebot und dem Gesetzlichkeitsprinzip Rechnung zu tragen). Teile des Common Law gelten in ihrer ursprünglichen Fassung noch in zahlreichen Ländern, die früher Kolonien der englischen Krone waren, vor allem in den USA.
Wikipedia is a wonderful resource. But I have to say: the first sentence perhaps applies to US states, where the common law brought over from England does have the status of a kind of recognized custom in each state (most states). However, common law started as the king’s law in England and shouldn’t be called Gewohnheitsrecht. Next, if common law is contrasted with equity, it does not cover all fields of law. However, there’s no mention of equity here and it seems meaningless to use the term in a wider sense (as if I were to say, ‘German law includes all areas of law’). It’s news to me that the codification of criminal law, which has long been proceeding, relates to the EU: the requirement that the law be certain is not the sole province of EU law – but you never know.
I was moved to write this as I just read a German definition of common law as the common law of the Commonwealth. No, it isnt that either. Watch this space for an entry on What common law is.