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“Common Law” – A Brief Explainer

Updated: Feb 18

“Common law” refers to the legal system developed in medieval England and exported to most of Britain’s former colonies and protectorates (including the US, 49 US states, Canada, Australia, New Zealand, England, and Ireland).

The common law legal system generally refers to judge made law and an emphasis on precedent. This distinguishes it from “civil law” jurisdictions (in use in much of Europe, and a few blended jurisdictions like Louisiana, Quebec, and Scotland).

Common law rules were developed over the centuries by judges. When a lawyer says “at common law,” you can bet they’re going to follow that with some old rule that has likely been superseded by subsequent rules or by statute.

The “short” history begins in early medieval England. A handful of Germanic tribes took over what is now England and brought their traditional law with them. They began codifying their laws in statutes, but these were mostly reimbursements for crimes. Private law was often a local matter, decided by traditional rules by folks we would see as essentially arbitrators.

In 1066, Duke William of Normandy conquered England and introduced new legal influences from the European continent. In the 12th century, his great-grandson, Henry II, sent judges around England to develop a common set of legal rules and principles for the kingdom out of those traditional rules, church law, and other sources. The eventual result, and the subsequent centuries of judge-developed law, is what we call “the common law.”

Every US state (except, perhaps, Louisiana) has some form of reception of the common law, usually by statute. Those of California and Texas are:

  1. "The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State." Cal. Civ. Code section 22.2.

  2. "The rule of decision in this state consists of those portions of the common law of England that are not inconsistent with the constitution or the laws of this state, the constitution of this state, and the laws of this state." Tex. Civ. Prac. & Rem. Code section 5.001.

I hope this explainer is helpful. Future posts will refer to the common law or common law rights, so hopefully this will aid in understanding those future references.

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