10/31/2017 Common Law - Definition, Examples, Cases, Processes

Legal Dictionary
BROWSE LEGAL TERMS FAMILY & ESTATE PLANNING BUSINESS & REAL ESTATE CIVIL LAW CRIMINAL LAW LEGISLATION & LEGAL PROCESSES

ILLUSTRATIONS CASE BRIEFS

Search

RELATED POSTS

Replevin
Nonsuit
Ostensible Agency
Liability
Causation
Case Law
Vicarious Liability
Statute of Frauds
Slander
Pecuniary
Malicious Prosecution
Stare Decisis
Respondeat Superior
Qui Tam
Quantum Meruit

POPULAR ILLUSTRATIONS

Civil Law
Invasion of Privacy
Breach of Contract
Defamation
Forgery
Insurance Fraud
Involuntary Manslaughter
Corpus Delicti
Exclusionary Rule
Spousal Support
Felony
Eminent Domain
Car Accident
Negligence
Stalking
2nd Amendment
Command Economy
Battery

https://legaldictionary.net/common-law/ 1/6
10/31/2017 Common Law - Definition, Examples, Cases, Processes

Larceny
Joint Venture
Double Jeopardy
Insubordination
Habeas Corpus
Restitution
Cybercrime

POPULAR LEGAL TERMS

Marital Abandonment
Child Abandonment
Price Gouging
Racketeering
Bench Warrant
Dismissed with Prejudice
Cyberstalking
Forum Non Conveniens
Ex Parte
Monarchy
Preamble
7th Amendment
Verbal Abuse
Contempt of Court
Hate Speech
Affidavit
Mail Fraud
Federal Government
Democracy
Non-Marital Property
Exclusive Use and Possession
Impeachment
Motion
Gag Order
Wage Garnishment

COMMON LAW
Common law is a term used to refer to law that is developed through decisions of the
court, rather than by relying solely on statutes or regulations. Also known as case law, or
case precedent, common law provides a contextual background for many legal concepts.
Common laws vary depending on the jurisdiction, but in general, the ruling of a judge is
often used as a basis for deciding future similar cases. To explore this concept, consider
the following common law definition.

Definition of Common Law

Noun

https://legaldictionary.net/common-law/ 2/6
10/31/2017 Common Law - Definition, Examples, Cases, Processes

1. Laws that are based on court or tribunal decisions, which govern future decisions on
similar cases.

Orig in

1300-1350 Middle English

What is Common Law

Common law often refers to laws that are based on the customs and principles of society,
which are used in court case decisions in situations not covered by civil law statutes. These
decisions set a precedent that must be applied to future cases on the same subject.

While the term common law is used to refer to principles applied to court decisions, a
common law system refers to a legal system that places great weight on judicial decisions
made in prior similar cases. In the United States, common law, or precedent, is used to
help ensure similar results in similar cases. Courts are bound by the decisions of higher
courts on similar matters, by a principle of stare decisis. If the court determines a case to
be fundamentally different from prior cases heard by other courts, its decision is likely to
create precedent for future cases on that subject.

History of Common Law

Common law is a term that was originally used in the 12th century, during the reign of
Henry II of England. The ruler established secular tribunals, with the goal of establishing a
unified system of deciding legal matters. The Kings judges in these tribunals respected
the decisions of one another, such decisions creating a unified common law throughout
England. The precedent set by the courts through the 12th and 13th centuries were often
based on tradition and custom, and became known as a common law system.

Common law in the United States dates back to the arrival of the colonists, who brought
with them the system of law with which they were most familiar. Following the American
Revolution, the newly formed states adopted their own forms of common law, separate
from the federal law.

Systems of Common Law vs. Civil Statutory Law

Systems of common law and civil statutory law differ in many ways. Rulings in a common
law system rely heavily on prior decisions made in similar cases. Rulings in a statutory law
system are based primarily statutory laws. This makes the method by which laws are
developed and enacted. While common laws develop over time as judicial decisions are
made, and used in future decisions, they generally do not become statutory laws
enforceable by law enforcement or enforcement agencies. It takes time for the influence of
common laws to spread and become common knowledge.

Statutory laws, on the other hand, rely on the legislative process, in which laws and
ordinances are developed and voted on by representatives of the people. Once these new
laws go into effect, they are enforceable by law enforcement or governmental agencies,
and the letter of the law is usually applied in court. Because common law is based on
judicial opinion, parties to a civil lawsuit may draw comparisons between precedent-setting
cases. Statutory law does not allow for comparisons. For example, civil statutory laws
govern such things as deadlines and statutes of limitations, allowed monetary damages,
and sentencing.

Many countries rely on either the common law system, or a civil statutory law system. In
the United States, the judicial system is a combination of the two, with statutory laws being
applied where appropriate, while requiring the courts to adhere to precedent in
determining cases not governed by statute.

Federal Common Law

https://legaldictionary.net/common-law/ 3/6
10/31/2017 Common Law - Definition, Examples, Cases, Processes

Federal Common Law

The use of common law by federal courts is limited to deciding federal cases. While, in
certain circumstances, federal court may have jurisdiction to hear a case under state law
(known as diversity jurisdiction), it cannot create or apply federal common law or
precedent to deciding a state law case. Rather, a federal judge hearing such a case must
turn to state law precedent.

Supreme Court Ruling on Common Law in Diversity

Cases
On July 27, 1934, Harry Tompkins was walking on a narrow footpath by the Erie Railroad
tracks in Hughestown, Pennsylvania. As a train approached, something protruding from
one of the railcars struck Tompkins and knocked him down, causing his arm to be crushed
beneath a train wheel. The train was operated by a corporation registered in New York, so
Tompkins filed his civil lawsuit in federal district court.

The district court judge who heard the case followed current federal law of the time, in
applying federal common law to the case, rather than common law of either the state of
Pennsylvania or New York. Federal common law applied a standard of ordinary
negligence when determining what level of care the railroad owed to individuals who are
not employed by the railroad. Common law in the state of Pennsylvania, where the
accident occurred, specifies that the railroad owes a wanton negligence duty of care to
trespassers, which requires proof of a greater level of negligence. The court found in
Tompkins favor, and awarded him damages.

Prior to the case of Tompkins v. Erie Railroad, it had already been determined that, when a
case is heard in federal court in diversity, meaning that the case is filed in federal court
because it crosses state jurisdictions, the states statutory law must be applied. It had also
been ruled, however, that a federal court hearing a case in diversity was not required to
apply the states common law, or precedent, to the case.

The railroad appealed the matter to the appellate court, then to the U.S. Supreme Court.
After reviewing the case, the Supreme Court ruled that the federal district court did not
have the authority to create federal common law when reviewing state law claims in
diversity, but must apply state common law.

This topic was quite important, as it was an effort by the Supreme Court to address the
issue of forum shopping, where plaintiffs in cases that cross jurisdictions take their case
to the state or jurisdiction whose laws would give them the greatest advantage. With this
decision, the Court overturned federal civil procedures, creating a mandate that federal
common law should be applied only to strictly federal cases, and not to diversity cases.

Related Legal Terms and Issues

Af f irm To uphold a lower courts decision.
Binding P recedent A rule or principle established by a court, which other courts
are obligated to follow.
Civ il Laws uit A lawsuit brought about in court when one person claims to have
suffered a loss due to the actions of another person.
Def endant A party against whom a lawsuit has been filed in civil court, or who
has been accused of, or charged with, a crime or offense.
Div ers ity Juris diction Jurisdiction of a U.S. federal court to hear a case between
residents of different states, if it meets a specified monetary threshold.
Juris diction The legal authority to hear legal cases and make judgments; the
geographical region of authority to enforce justice.
P laintif f A person who brings a legal action against another person or entity, such
as in a civil lawsuit, or criminal proceedings.
https://legaldictionary.net/common-law/ 4/6
10/31/2017 Common Law - Definition, Examples, Cases, Processes

Stare Decis is The principle that cases based on similar facts should be decided in
a consistent manner, with similar results.

Welcome all discussions

5 C o mmen ts o n "C o mmo n Law "

Notify of new follow-up comments Email

Join the discussion

Troy

Your History of the Common Law is severely flawed. England did not invent the Common Law, it
Guest
merely borrowed from it. Moreover, the Common Law is not confined to civil proceedings, but extends
to criminal proceedings as well. Under the Judicial Power, which is the only power granted to
government that can effectively affect a natural humans right to life, liberty, and property in pursuit of
happiness, there are merely two classes of cases (or jurisdictions) wherein crimes are to be addressed:
Common Law and Admiralty Law. One deals with the rights of people as they exist on land, andRead
more

Are you a lawyer? Yes

0 REPLY 5 months 11 days ago

Troy

It should be noted that according to the Constitution and the Common Law upon which its
Guest
language draws, all of the people are presumed to know the Law, and no attorney is actually
licensed to practice what everyone is presumed to know.

God Bless in Truth and Love

Are you a lawyer? Yes

1 REPLY 5 months 11 days ago

Troy

Also, this information concerning your link:

Guest
Common Law Definition, Examples, Cases, Processes
//legaldictionary.net/common-law/
These decisions set a precedent that must be applied to future cases on the same
subject. Common law only refers to civil cases, and has no bearing on criminal

Is misleading, for I have not found the actual language of it once I clicked on the link. You
should probably correct that as soon as you can. Its what caught my attention. (Unless it
was by design? Which poses some interesting legal questions.)

God Bless in Truth and Love

Are you a lawyer? Yes

-1 REPLY 5 months 11 days ago

Emma

https://legaldictionary.net/common-law/ 5/6
10/31/2017 Common Law - Definition, Examples, Cases, Processes
Guest
what Law of Equity was viewed essentially as a modern body of legal doctrine that
served to supplement the Common Law system?
Please help me ..

Are you a lawyer? No

0 REPLY 4 minutes 17 seconds ago

Davida

Cool..tnx for the information

Guest

Are you a lawyer? No

0 REPLY 1 month 4 days ago

Terms of Service

https://legaldictionary.net/common-law/ 6/6