(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: Continue reading →

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 isn’t called common law. Originally, common law was developed by the king’s 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 king’s courts. I therefore find it confusing to call it custom.

Here’s the Oxford Dictionary of Law
on custom as it’s 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 don’t 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 isn’t that either. Watch this space for an entry on What common law is.

The four inns of court in London are organizations that barristers belong to, and their names are also used to refer to the areas of London they own. They are called Middle Temple, Inner Temple, Lincoln’s Inn and Gray’s Inn. To make this clearer, here’s a brief flash tour of three inns of court.

Ethno:log beschreibt eine Möglichkeit, für direkte Hilfe in einem Fischerdorf nahe Pondicherry zu spenden.

Details of the above project are available only in German (Ethno:log, via Mosaikum). Professor Laubscher of the Ethnology department at Munich University has a house on the coast near Pondicherry that the wave did not quite reach and is involved in a project that has been going on for 30 years. Money is intended to help the locals help themselves. Among other things, 6 fishing boats for 3000 euros each are needed.

System by Jeremy Grove, via MoCo Loco and netbib.weblog.

This is Höffi, the mascot of the huge furniture shop Möbel Höffner, which has been promising to build in Fürth for a couple of years now.

Meanwhile, the no less wily Möbel XXXLutz has opened in Nuremberg.

It seems that Möbel Lutz has bought a small piece of land interrupting Möbel Höffner’s prospective connection to the motorway.

bq. Was den Neubau hinauszögern könnte: Im Bereich der geplanten neuen Autobahnauffahrt bei Steinach hat Möbel Lutz ein Sperrgrundstück (einen so genannten Schikanierzwickel) erworben. Die nun nötigen Grundstücksverhandlungen sind er-fahrungsgemäß langwierig.

(Fürther Nachrichten – link unlikely to last).

Zwickel means gusset or gore or spandrel; schikanieren is to harass someone. There are a few Google hits for Schikanierzwickel – the Amtsblatt der Stadt Radebeul actually apologizes for using the term (it apparently hadn’t heard of Sperrgrundstück).

bq. Auch das im Amtsblatt 2/2000 angesprochene „Schikanierzwickel“ – für diesen Ausdruck entschuldigen wir uns hiermit – ist in dem für den Straßenbau erforderlichen Umfang durch die Eigentümerin zur Verfügung gestellt worden.

However, Höffner has got its revenge by buying Franken Wohnland, at the next exit along from IKEA, so until the big building goes up it can sell from there.

On top of this, there’s the ongoing saga of the planned mineral baths and the attempts at sabotage by Herr Steiner of the bath once known as Palm Beach and now Kristall Palm Beach, of which more another time (history of mineral baths in Fürth).