common law

1. the body of law based on judicial decisions and custom, as distinct from statute law

2. the law of a state that is of general application, as distinct from regional customs

3. denoting a marriage deemed to exist after a couple have cohabited for several years

Collins Discovery Encyclopedia, 1st edition © HarperCollins Publishers 2005

common law

a system of law, of which English law is the prime example, based on legal precedents created by judges. Thus, this system directly contrasts with more formally codified systems of ‘civil law’, such as those based on ROMAN LAW (e.g. Scottish law). In common-law systems, however, increasing legislative activity by the STATE has meant that ‘statute law’ also plays an important role within such systems.

Collins Dictionary of Sociology, 3rd ed. © HarperCollins Publishers 2000

The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Common Law

a legal system in which judicial precedent is considered the primary source of law. Laws regulate various relationships, but they are not codified in a single system; all matters that are not regulated by law, as well as the interpretation and application of the laws, are governed by common law. Common law prevails in Great Britain (but not Scotland), the United States (except for Louisiana), Canada, Australia, New Zealand, and several other countries that are former British colonies and have adopted the British legal system.

Common law originated in England in the 13th and 14th centuries on the basis of local customs and the practices of royal courts. Because procedure in these courts was extremely formalistic, a parallel system, known as the law of equity, appeared in the 14th century. In 1873 the common law and the law of equity were merged into a single system of common law, but in theory and practice there was a precise distinction between the legal institutions of each system.

Common law combines formalism with almost unlimited court discretion. Ostensibly a court is bound by a decision handed down at an earlier time in a similar case by a court of the same or higher instance, but since there are a great number of precedents, a court may select those that confirm its position. Employing highly refined techniques of interpreting precedent, the court may reach a contrary decision without nullifying a previously established rule of law. Common law retains the legal institutions and terminology adopted during the period of its formation, it uses them used to regulate relations under modern capitalism. The preservation of archaic forms and of a special “legal language” and the necessity of understanding a large number of precedents make common law essentially inaccessible to those who do not have special legal training.

Describing English common law, F. Engels wrote: “The lawyer is everything here; a person who has spent his time wisely enough on this legal jumble, this chaos of contradictions, is omnipotent in the English court. The ambiguity of the law has, of course, led to a belief in the authority of the decisions of earlier courts in similar cases; this is only a means of bolstering itself, because these judgments are just as mutually contradictory” (K. Marx and F. Engels, Sock, 2nd ed., vol. 1, p. 639).

In the 1940’s and 1950’s many legislative acts were adopted in Great Britain, but they do not diminish the importance of common law because the application and interpretation of the law depend essentially on the courts.

In the United States and other countries that have adopted common law, it has evolved in accordance with its general principles, although not all the institutions and forms that developed in Great Britain have been included in the common law of the United States and its individual states or of Canada and its provinces. In these countries the more obsolete forms have been discarded, and common law has come to be based on the precedents of the country’s own courts, although there are frequent references to English common law in court practice.

REFERENCE

David, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 252–332. (Translated from French.)

B. O. KHALFINA

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References in periodicals archive

What is true of Tullock's criticisms of the common law also is largely true of Roman civil law, to which we now turn.

Although Roman civil law is much older than the common law, "traceable and codified under Justinian in the sixth century A.D." (Merryman and Perez-Perdomo [1969] 2007, 6), its modern reincarnation originates in the Napoleonic Code, (11) adopted in 1804 in reaction to the murderous Directory that followed the French Revolution, which exercised its authority ruthlessly with the assistance of the invention often attributed erroneously to Dr.

Gordon Tullock's Critique of the Common Law

Willard Hurst and the Common Law Tradition in American Legal Historiography, 10 LAW & SOC'Y REV.

at 337 (first quoting William Gardiner Hammond, Lectures on the History of the Common Law of England and America: Lecture 1, at 47 (on file with author); then quoting 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 206 (William G.

The Diversity of the Common Law Tradition

Instead, he simply noted (almost in passing) that "there is no doubt that secret agents of this nature are subject to trial under the statutes or military common law of the captor." (75) Still, the question remains as to where such spies and saboteurs are subject to prosecution--an Article III court or a military commission?

The government's position regarding the jurisdiction of military commissions to try domestic law of war offenses--so-called violations of the "common law of war"--does not rely exclusively on Quirin.

The common law of war

In past centuries in the common law these conditions were almost ideally satisfied.

Very little legal academic thought emanated from universities in the common law world until the late nineteenth century.

A.W.B. Simpson's "The Common Law and Legal Theory."

The most important feature of classical common law theory was its peculiar definition of law.

That antient [sic] collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest.

Common law constitutionalism and its counterpart in Japan

While the plan may have separate reporting requirements for its plan participants, contributing ALEs are required to report for full-time common law employees for whom they are contributing to a multiemployer plan.

Common employer practices may be insufficient for new PPACA reporting requirement

the common law's extensive use of legal concepts are misguided.

Structure and value in the common law