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A rule of conduct or procedure established by custom, agreement, or authority. The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system: international law. The condition of social order and justice created by adherence to such a system: a breakdown of law and civilized behavior. A set of rules or principles dealing with a specific area of a legal system: tax law; criminal law. A piece of enacted legislation. What is Law?

Common law

Common law has several distinct meanings: the common law legal system, as
contrasted with the civil law legal system; common law, as contrasted with
statutory law; and common law, as contrasted with equity. It may also refer
to the jus commune or law of the land as in the very confusing phrase, the
common law of the civil law systems, meaning those underlying laws that
create a distinct legal system and common to all its elements.

History of the common law

The common law originally developed under the auspices of the adversarial
system in historical England from judicial decisions that were based in
tradition, custom, and precedent. The form of reasoning used in common law
is known as casuistry or case-based reasoning. Common law may be unwritten
or written in statutes or codes. The common law, as applied in civil cases
(as distinct from criminal cases), was devised as a means of compensating
someone for wrongful acts known as torts, including both intentional torts
and torts caused by negligence and as developing the body of law recognizing
and regulating contracts. Today common law is generally thought of as
applying only to civil disputes; originally it encompassed the criminal law
before criminal codes were adopted in most common law jurisdictions in the
late 19th century. The type of procedure practiced in common law courts is
known as the adversarial system; this is also a development of the common law.

Before the institutional stability imposed on England by William the
Conqueror in 1066, English citizens were governed by unwritten local customs
that varied from community to community and were enforced in often arbitrary
fashion. For example, courts generally consisted of informal public
assemblies that weighed conflicting claims in a case and, if unable to reach
a decision, might require an accused to test guilt or innocence by carrying
a red-hot iron or snatching a stone from a caldron of boiling water or some
other "test" of veracity. If the defendant's wound healed within a
prescribed period, he was set free as innocent; if not, execution usually followed.

In 1154, Henry II became the first Plantagenet king. Among many
achievements, Henry institutionalized common law by creating a unified
system of law "common" to the country through incorporating and elevating
local custom to the national, ending local control and peculiarities,
eliminating arbitrary remedies, and reinstating a jury system of citizens
sworn on oath to investigate reliably criminal accusations and civil claims.
The jury reached its verdict through evaluating common local knowledge, not
necessarily through the presentation of evidence, a distinguishing factor
from today's civil and criminal court systems.

Henry II's creation of a powerful and unified court system, which curbed
somewhat the power of canonical (church) courts, brought him (and England)
into conflict with the church, most famously, with Thomas Becket, the
archbishop of Canterbury. Things were resolved eventually, at least for a
time, in Henry's favor when a group of his henchmen murdered Becket. For its
part, the Church soon canonized Becket as a saint.

By the 17th century, the judicial system recognized that certain wrongs,
such as trespass, were not susceptible of compensation because the wronged
person didn't care about the money but wanted his land back (trespass) or
the benefit of his bargain (that house he agreed to purchase), and mere
compensation could not make him whole. From this, courts of chancery
developed in England with a purpose of doing what was fair ("equitable"),
and through these courts one could force the wrongdoer to sell him that
house or get off his land (or go to jail if he still refused). In England,
courts of law and equity were combined in 1875, and the roles of the
advocates appearing before them were amalgamated into one -- a solicitor.
Barristers also operate in some common law courts. These systems of law
(providing money damages) and equity (fashioning a remedy to fit the
situation) continued as parallel systems and courts well into the 20th
century in most courts in the United States: In the federal courts there is
no separation between law and equity; Delaware still has separate courts of
law and equity, and in many states there are separate divisions for law and
equity within one court.

Common law legal systems

The common law constitutes the basis of the legal systems of: the United
Kingdom (except Scotland), the United States (except Louisiana and Puerto
Rico), Canada (except Quebec), Australia, New Zealand, South Africa, India,
Singapore, and many other generally English-speaking countries or
Commonwealth countries. Basically, every country which has been colonised at
some time by Britain except those British colonies that were taken over from
other Empires, such as Quebec (following French law to some extent) and
South Africa (following Roman Dutch law to some extent) where the prior
civil law system was retained to respect the civil rights of the local
colonists. India's system of common law is also a mixture of English law and
the local Hindu law.

The main alternative to the common law system is the civil law system, which
is used in Continental Europe, Quebec, Louisiana, the former Soviet bloc,
and most of the rest of the world. Scotland is often said to use the civil
law but in fact it has a unique system which combines elements of an
uncodified civil law dating back to the Corpus Juris Civilis with a
influence of common law after the unification with England in 1707.

The U.S. state of California has a system based on common law, but it has
codified the law in the manner of the civil law jurisdictions. The reason
for the enactment of the codes in California in the nineteenth century was
to replace a pre-existing system based on Spanish civil law with a system
based on common law, similar to that in most other states. California and a
number of other Western states, however, have retained the concept of
community property derived from civil law. The California courts have
treated portions of the codes as an extension of the common-law tradition,
subject to judicial development in the same manner as judge-made common law.
(Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the
California Supreme Court adopted the principle of comparative negligence in
the face of a California Civil Code provision codifying the traditional
common-law doctrine of contributory negligence.)

New York State, which also has a civil law history from its Dutch colonial
days, also began a codification of its laws in the ninteenth century. The
only part of this codification process that was cosnidered complete is known
as the Field Code appling to civil procedure. The original colony of New
Netherlands was settled by the Dutch and the law was also Dutch. When the
British captured pre-existing colonies they continued to allow the local
settlers to keep their civil law. However, the Dutch settlers revolted
against the English and the was recaptured by the Dutch. When the English
finally regained control of New Netherlands -- as a punishment unique in the
history of the British Empire -- they forced the English common law upon all
the colonists, including the Dutch. This was problematic as the patroon
system of land holding, based on the feudal system and civil law, continued
to operate in the colony until it was abolished in the mid-nineteenth
century. The influence of Roman Dutch law continued in the colony well into
the late nineteenth century. The codification of a law of general
obligations shows how remnants of the civil law tradition in New York
continued on from the Dutch days.

Basic principles of common law

Statutes which reflect English common law are understood to always be
interpreted in light of the common law tradition, and so may leave a number
of things unsaid because they are already understood from the point of view
of pre-existing case law and custom. This can readily seen in the area of
criminal law, which while original judge made law in England, has now become
a statute based system in all jurisdictions; even today American law schools
teach the common law of crime as practiced in England in 1750 as most
colonies (and subsequently the states) deviated from the common law as
practiced in England only after that date as the reception of the common law
remains the basis of all Anglo-American criminal law.

By contrast to the statutory codifications of common law, some laws are
purely statutory, and may create a new cause of action beyond the common
law. An example is the tort of wrongful death, which allows certain persons,
usually a spouse, child or estate, to sue for damages on behalf of the
deceased. There is no such tort in English common law; thus, any
jurisdiction that lacks a wrongful death statute will not allow a lawsuit
for the wrongful death of a loved one. Where a wrongful death statute
exists, the damages or compensation available are limited to those outlined
in the statute (typically, an upper limit on the amount of damages). Courts
generally interpret statutes that create new causes of action narrowly --
that is, limited to their precise terms -- because the courts generally
recognize the legistature as being supreme in deciding the reach of judge
made law unless such statute should violate some "second order"
constitutional law provision (compare judicial activism).

Where a tort is grounded in common law, then all damages traditionally
recognized historically for that tort may be sued for, whether or not there
is mention of those damages in the current statutory law. For instance, a
person who sustains bodily injury through the negligence of another may sue
for medical costs, pain, suffering, loss of earnings or earning capacity,
mental and/or emotional distress, loss of quality of life, disfigurement,
and more. These damages need not be set forth in statute as they already
exist in the tradition of common law. However, without a wrongful death
statute, most of them are extinguished upon death. An old saying (in states
with no or low wrongful death damages) was: "It is better to back up and
over the person to ensure his death and limit your legal liability!"

Works on the common law

The definitive historical treatise on the common law is Commentaries on the
Laws of England, written by Sir William Blackstone and first published in
1765 - 1769. Since 1979 a facsimile edition of that first edition has been
available in four paper-bound volumes. Today it has been superseded in the
English part of the United Kingdom by Halsbury's Laws of England that covers
both common and stautory English law. The U.S. Supreme Court judge Oliver
Wendell Holmes Jr. also published a short volume called The Common Law that
remains a classic in the field. In the United States, the Corpus Juris
Secundum is a compendium of the common law and its variations throughout the
various state jurisdictions.
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