The meaning of the term “common law”

This term has at least four different meanings.

1. (in contrast to local law) The law common to the whole of England after 1066, as opposed to local law (which had existed before 1066 and continued to exist to some extent after 1066). This was the original meaning of the term. This common law was the law made in the King’s (or Queen’s) courts. E.g.

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.

The term is only used in connection with legal history.

2. (in contrast to legislation) 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. Another expression with a similar meaning is “case law”: much of English law is case law. E.g.

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

3. (in contrast to equity) 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). E.g.

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 (or: just as rigid as the law).

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

Legal remedies, equitable remedies

4. (in contrast to other legal systems) The law of England and Wales and all other legal systems based on it. E.g.

The USA, England and Australia are all common-law countries

Note also the expression “a common-law wife” ( = the woman a man is living with, without being married). This term is used in England without any legal significance, but in some US states and in Scotland there is a form of legally recognized common law marriage (cohabitation with habit and repute).