University of Virginia Library

COMMON LAW

Common law is a category of the jurisprudence of
every legal system that has reached a certain level of
complexity. The term indicates a body of rules which
is contrasted with some other body of rules belonging
to the same legal system but having a special character.
The special character of the other body of rules may
arise because the rules have a particular origin, because
they are applied by a particular court, or because they
apply exclusively to a particular group of people or
within a particular territorial area. The common law
is the body of rules which apply generally, outside the
particular category, and its precise content depends
on the nature of the contrast being made. Common
law is thus a relative notion, with no constant content,
and the various possible specifications of the category
in any legal system can only be explained historically.

In the terminology of Roman law, which has been
more influential than that of any other legal system,
the expression Ius commune occurs principally in two
such contrasts. The jurist Gaius (second century A.D.),
as cited in Justinian's Digest (1.1.9), says that “all na-
tions governed by laws and customs use partly law
which is peculiar to themselves and partly law common
to all mankind (Ius commune omnium hominum).” He
goes on to explain that the former is called civil law
(Ius civile) and the latter, “which natural reason has
laid down for mankind in general,” is called the law
of nations (Ius gentium). Thus within the Roman legal
system some institutions and rules, which were consid-
ered to be dictated by common sense and to be shared
by all legal systems, were ascribed to the latter cate-
gory, while others were the special property of the
Romans exclusively.

From another point of view the Roman lawyers
distinguished between those rules of Roman law—
irrespective of whether they belonged to all legal sys-
tems or were peculiar to Roman law—which applied
to citizens generally (rules which they called Ius com-
mune), and those which were restricted to a particular
group (rules which they called Ius singulare). Examples
of the latter are the rules which allowed soldiers to
make wills in informal ways not open to other citizens
and the rules applicable to heretics as opposed to
orthodox Christians.

The first of these conceptions of Ius commune may
be regarded as the parent of the Continental common
law, and the second of the English common law.

By the end of its classical period (roughly the first
two centuries A.D.), the remedies of Roman law were
available to all free residents of the Empire, without
regard to whether they were Roman citizens or not.
However the Germanic tribes, which formed the bar
barian successor states after the collapse of the Roman
Empire in the West, held to the personal principle in
legal matters. They regarded their own tribal laws as
applicable only to themselves and therefore continued
to apply a form of Roman law to their Gallo-Roman
subjects. The most enlightened of their kings provided
compilations of Roman law for this purpose, the most
important being the lex romana visigothorum (A.D.
506), which was the main source for Roman law during
the next five hundred years. Justinian's Corpus iuris
civilis, which was compiled later in the sixth century
in Byzantium, was hardly studied in the West before
the eleventh century.

The personal principle gradually gave way to the
territorial principle, whereby all those living in a cer-
tain area were subject to its law, irrespective of their
national origin. The different populations were fusing
together, and the distinction between Roman and Goth
or Frank was no longer clear. So the personal laws
disappeared in favor of the custom of the region. In
those areas where the Romanized population was the
strongest element, such as Italy and southern France,
this custom was in effect a barbarized Roman law. Just
as the Germanic languages gave way before dialects
of Latin, so in these areas the Germanic tribal laws
submitted to Roman law, which was no longer looked
on as the law of the conquered subject people but as
a general law for all the inhabitants. Even in the areas
where the custom was predominantly Germanic,
Roman law was not without influence, since even these
Germanic laws were written in Latin and adopted
many Roman legal terms.

In 800 Charlemagne revived the idea of the Roman
Empire and by asserting their succession to the old
Empire he and his successors claimed for themselves
the position and powers of the old Roman emperors.
They were thus able to exploit a widespread emotional
feeling for the cultural legacy of Rome and assert that
Roman law still applied to the inhabitants of the uni-
versal empire as it had done in the fifth century.

However, the full recognition of Roman law as the
common law of Europe was the product of the revival
of the study of the texts of Justinian's compilation,
which began at Bologna at the beginning of the twelfth
century. The first expositors of this law were the Glos-
sators. They concentrated on mastering the Justinianic
texts, which they regarded as a gift of God and treated
as having an almost sacred authority. In the course of
the twelfth and the first half of the thirteenth century,
they subjected the whole compilation to a dialectical
analysis, the results of which were synthesized about
1240 in the Great Gloss of Accursius. During this
period Bologna became a “legal Mecca,” to which
students flocked from all parts of Europe.

The Commentators who built on the work of the
Glossators treated the Gloss as having as much author-
ity as the texts which it interpreted. “What the Gloss
does not recognize, the Court does not recognize.” In
the course of the fourteenth century they began to
adapt the material presented by the Glossators to the
needs of the times in which they lived. In northern
Italy each town had its own statutes. Under the leader-
ship of their greatest figure, Bartolus, the Commenta-
tors established the principle that “a statute must be
interpreted according to the Ius commune,” in the
sense of the principles (rationes) derived from the law
of the Corpus iuris as expounded by the Glossators.
Moreover, wherever local law in the sense of the mu-
nicipal statutes did not deal specifically with a matter,
the law which was presumed to apply was this common
law. From the fifteenth century onwards, doubts as to
what constituted the common law were resolved by
reference to the “common opinion of the doctors”
(communis opinio doctorum), which was essentially the
dominant view among those jurists who had written
treatises for practical, forensic purposes.

It was gradually recognized that the justification for
regarding this law as the common law of Europe was
not so much its formal authority as the law of the Holy
Roman Empire as its substantial superiority and com-
prehensive character compared with any possible rival.
It was said to be a universal law not by reason of the
Empire but by the empire of Reason, and its doctrines
came to be regarded as “reason in writing” (ratio
scripta). As such it was the only secular system of law
to be taught in European universities side by side with
the canon law of the universal Church. To distinguish
it from the latter it was called the civil law. As long
as the only secular law available in law faculties was
the civil law taught in Latin, the learned lawyers in
all countries of necessity shared a common legal cul-
ture, and often studied law in a country other than
their own.

The movement by which the civil law superseded
the local laws and became in fact accepted as the
common law of all the countries of Europe, except
England and Scandinavia, is known as the Reception.
It took different forms and occurred at different times
from country to country, but always it was associated
with the development of a learned legal profession and
courts of professional judges.

In Italy, the only secular rival to Roman law apart
from the local statutes, which, as we have noted, were
subordinated to Roman law, was the feudal land law.
Here the civil lawyers executed a neat take-over by
incorporating the libri feudorum (“Books of the
Feus”), the standard collection of feudal law (mid-
twelfth century), into the Corpus iuris, of which they
were henceforth considered a part.

In France, the southern part of the country, known
as the pays de droit écrit, already recognized the bar-
barized Roman law of the lex romana visigothorum
as the principal element of its regional custom, and
the new learning derived from Bologna was readily
received there. The French civil lawyers proposed to
treat the French customary laws like the Italian stat-
utes, as particular laws over which the civil law en-
joyed a higher authority. Where a definite rule appli-
cable to the case in hand was lacking or where the
customs were obscure, they held that the civil law
applied as the residuary common law.

In the north, the pays de droit coutumier, where
Germanic custom prevailed, Roman doctrines were
drawn on to fill gaps in the customs. The lawyers of
this part of France often used a Roman rule “not in
its proper and logical sense, but in order to confirm
or to prove some opinion of their own, which possibly
did not fit in exactly with the concrete rule brought
forward to support it” (Vinogradoff, p. 94). Thus they
constructed their own systems partly out of Roman and
partly out of native materials. They also held a view
different from that prevailing in the south as to what
constituted the common law. Already in the thirteenth
century they were aware of a fundamental unity lying
behind the apparently diverse customs. In the prologue
to the Coutumes de Beauvaisis (ca. 1280), Philippe de
Beaumanoir speaks of a common law of the kingdom
of France, by which he means certain general princi-
ples, usually expressed in the form of an adage or
maxim, which were accepted by all collections of
customary law and were therefore regarded as having
almost universal validity. There was a strong presump-
tion against any deviation from these principles.

Whereas in France the Reception was a more or
less gradual and voluntary process, extending over
several centuries, in Germany it was wholesale and
sudden. In the fourteenth century the German Empire
was a loose confederation of countless principalities
and free cities, each having its own customary law.
In addition there were separate systems of law for
particular social groups, such as knights, guilds, and
peasants. Except in Saxony, there was little attempt
to systematize the customs on a professional basis. In
the fifteenth century only the civil law, as glossed and
explained by the Commentators, provided the required
centripetal force to counteract these particularistic
tendencies.

The practice grew up of submitting disputes, when
they were beyond the ability of lay judges of the local
courts to solve them, to the German law faculties for
their opinions, and the professors naturally applied the
“learned law.” In 1495 the central Imperial court, the
Reichskammergericht, officially adopted the modern-
ized Roman law as the common law of the Empire.

The influence of the Commentators, although it was
delayed in Germany by contrast with Italy or France,
was all the stronger and more dramatic and the local
laws rapidly succumbed. Being mainly an upper-class
movement, the common law (gemeines Recht) en-
countered much opposition from the lower orders, who
were attached to the old customs that it was supersed-
ing. But the professional counterattack of Germanism
against Romanism in law was a product of the nine-
teenth century. From the sixteenth to the eighteenth
century inclusive, the civil law was scarcely challenged
as the common law of the German-speaking states.

In Scotland the first permanent central court, the
Court of Session, established in 1532, followed the
common pattern by adopting the civil law whenever
a case could not be settled by recourse to established
native law. An Act of the Scots Parliament of 1583
(cap. 98) refers to a Roman law rule as “the disposition
of the common law.” Lord Stair in his Institutions of
the Law of Scotland ([1681], I.1.11,12), recognized that
in Scotland the civil law was considered to be common
law in the sense of law “which in some sort is common
to many nations,” but emphasized that it was “not
acknowledged as a law binding for its authority, yet
being, as a rule, followed for its equity.”

The civil law was received as common law through-
out Europe out of a mixture of motives. In the political
field, it expressed the idea of the State, superior to
feudal groupings and local interests. It was therefore
attractive to territorial princes, who appealed to the
Roman maxim, “the will of the prince has the force
of law.” From the economic point of view, it provided
the elements of a commercial law, especially with
regard to contracts, which was urgently required by
the rising merchant class, but which the local customs
lacked. Lastly from the jurisprudential point of view,
“it asserted itself as soon as there reappeared theoret-
ical reflection of legal subjects. And when the elabora-
tion of common law became a social necessity, the
Roman system grew to be a force not only in the
schools, but also in the courts” (Vinogradoff, p. 144).
To be effective, the Continental common law had to
be accepted by the courts, but its mouthpieces re-
mained the academics rather than the practitioners,
the jurists rather than the judges.

The seventeenth- and eighteenth-century movement
in favor of rationalist systems of natural law shows how
entrenched a position the civil law had achieved. For
when the systems are examined, the rules dictated by
natural reason usually turn out to be just the rules of
the civil law purged of their more antiquarian aspects.
Also in the seventeenth century, however, national
deviations from the common law begin to be formally
recognized by the use of such terms as Roman-Dutch
law and Roman-German law. These laws were regarded
as variations on the same theme until the publication
of national codes at the end of the eighteenth century.
The French Civil Code of 1804, by its association with
the Revolution, marked a particularly sharp break with
the past. Thereafter, although uncodified gemeines
Recht existed in Germany until the enactment of the
German Civil Code in 1900, the notion of a common
law of Europe became increasingly a fiction. The ro-
mantic movement and the historical school of juris-
prudence stressed national differences in law and the
positivists urged the importance of legislation as a
medium of law reform.

In England the situation was very different. Im-
mediately after the Norman Conquest, William I began
to impose on the country a centralized structure of
government, and his policy of strengthening the ad-
ministrative organs in the control of the king against
the local institutions was continued by his successors,
especially Henry II in the twelfth century. During this
period there were many courts administering justice—
shire courts, feudal courts, borough courts, church
courts—and the king's court, the curia regis, was just
one among them. The growth of the English common
law is bound up with the gradual take-over by the
king's court of the main work of these other courts
and the corresponding submission of the laws applied
by these courts to the law of the king's court. Already
in Henry II's time it had become a permanent court
of professional judges, who had their main seat at
Westminster, but who traversed the whole country on
regular circuits. The royal court (curia regis) was able
to supersede its rivals because of the superiority of its
procedure. In civil actions this procedure had two
noteworthy features which distinguished it from its
rivals: first, actions were begun by writ, a royal com-
mand in writing addressed to a sheriff or other royal
officer bidding him bring a certain person before the
royal court to answer the claim against him, and sec-
ondly (although at first only in disputes involving land),
proof of matters of fact could be by the evidence of
neighbors rather than by ordeal or battle, which were
the normal methods of proof in the local courts.

By the end of Henry II's reign there were seventy-
five stereotyped forms of writ, each with its own title
indicating its function, such as writ of debt, writ of
trespass, writ of mort d'ancestor, and the clerks of the
royal Chancery would issue them as a matter of course
to anyone who could pay for them. It is in these writs
that we should seek the germ of the idea of a common
law available to all Englishmen, whether of Norman
or of Saxon stock, and wherever they happened to live.

The evident superiority of its justice naturally in-
creased the popularity of the king's court and resulted
in its splitting into three: King's Bench, Common Pleas,
and Exchequer. The latter, although primarily an ad-

ministrative body, had jurisdiction in all cases involving
Crown debtors.

The substance of the common law was created by
the judges of these three courts. The materials with
which they worked were of customary origin, some
going back to Anglo-Saxon England or pre-Conquest
Normandy, but were mainly the product of the feudal
conditions applicable to the larger landholders. Like
their contemporaries in the regional courts of northern
France, the English judges used Roman materials to
eke out the exigencies of the native customs. Since most
of the judges until well into the fourteenth century
were ecclesiastics, they were well acquainted with the
civil law. However, they were distinguished from their
French colleagues by the fact that their courts had not
a regional but a national jurisdiction. The victory of
the national law created by the king's courts over the
local customary laws was gradual, and the vitality of
the latter is often underestimated. If a local custom
could be proved to exist, the king's courts had to apply
it; and as late as the end of the fourteenth century,
for example, a defendant in the court of Common
Pleas could plead that the common law did not apply
to him, because the case was covered by the custom
of the small Yorkshire village of Selby, which was
different from the common law.

The first literary exponent of the new law of the
king's court was Rannulf Glanvil, whose Tractatus de
legibus et consuetudinibus regni Angliae (“Treatise on
the Laws and Customs of England”) was in effect a
commentary on the main forms of writ current in the
king's court. The emphasis on procedure is also evident
in the main medieval work of English law, Bracton's
De legibus et consuetudinibus Angliae (“Laws and
Customs of England,” ca. 1250). He made considerable
use of decided cases, and also incorporated a good deal
of the Roman law of the Glossators. He went to great
pains to show that England had laws just as Continental
countries did, even though these laws were not “writ-
ten” in the Romanist sense of being declared in
authoritative texts. The rules established by general
custom were declared not by a single judge alone but
by the whole court of the king, which represented the
magnates of the kingdom; but there was no authorized
version of these rules.

The term “common law,” used to describe the law
of the king's courts, was taken over from the exponents
of canon laws of the Church. From the beginning of
the thirteenth century the canonists used the term ius
commune to distinguish the general law of the whole
Church both from those rules which were peculiar to
a particular provincial church and also from papal
privileges, which granted special dispensations from
the general canon law to particular favored groups.
Thus Pope Innocent III in a decretal ascribes a certain
ruling to “both the common law and the general cus-
tom of the English church.” Maitland has shown (Pol-
lock and Maitland, I, 176-77) that the term passed from
the ecclesiastical courts to the secular courts. The
Dialogue of the Exchequer, written about the same
time as Glanvil's treatise, contrasts the common law
of the realm with the forest laws, which are the product
of the king's will. By the end of the thirteenth century
the usual phrase for the common law was lex communis
in Latin (or commune lei in Norman-French). The
earliest Year Books (the series of notes of cases argued
in the king's courts from about 1270 until the sixteenth
century) use the phrase to indicate the general law by
contrast with local custom and with the law merchant,
which applied only among merchants and which was
international in scope, and also to indicate the ancient
unenacted law by contrast with the statute law laid
down by Parliament and with the royal prerogative.
But at this time the term did not have the emotive
force which it later acquired.

Until the middle of the fourteenth century while the
common law was fairly flexible, the judges of the king's
court had adopted a free and accommodating attitude
towards parliamentary legislation. They looked on
statutes as merely settling the details of the common
law and did not regard them as a distinct source of
law. Thereafter, however, they made a sharp distinc-
tion between legislation and adjudication, and inter-
preted statutes strictly so as to interfere as little as
possible with the ancient usages which constituted the
common law. Henceforward the term “common law”
bears the connotation of unwritten law of customary
origin, declared by the judges of the king's court, by
contrast with the authoritative texts of the statutes
enacted by Parliament. The judges purported to de-
clare what had always been the law; Parliament made
new law and abrogated old law.

In the fourteenth and fifteenth centuries the law of
the king's courts became increasingly rigid and techni-
cal. The judges no longer included ecclesiastics, who
could contribute an experience of other legal systems.
The bench consisted entirely of secular judges ap-
pointed by the king from the ranks of practicing bar-
risters. The latter were organized in Inns of Court,
which served the purpose of universities, providing
both a collegiate environment for communal living
with many cultural activities and also a system of
education in the common law, which apprentices to
the law were made to follow. It is this theoretical
exposition of the common law in the Inns of Court,
under the control of professional practitioners of the

law, that distinguished it from the customary laws of
the Continent, which were not taught systematically
in any such equivalent to a law faculty. (Even in
England, Oxford and Cambridge taught only civil and
canon law until the middle of the eighteenth century.)
This teaching gave the common law a scientific struc-
ture which was generally lacking in other systems of
customary law and which enabled the common lawyers
effectively to resist the influence of the Roman civil
law. In Maitland's phrase “law schools make tough
law.”

For two and a half centuries after Bracton, foreign
influence on English law was slight. When, at the end
of the fifteenth century, Sir John Fortescue wrote his
book De laudibus legum Angliae (“In Praise of the
Laws of England,” ca. 1470), he showed that the com-
mon law had become a system which rested on histori-
cal foundations of its own, a parallel system to the
canon law of the Church but lacking the obvious fea-
tures of the civil law which was having so considerable
an influence on the Continent. Fortescue's book also
manifested some of the spirit of nationalism and in-
sularity which was henceforth to be a feature of the
English common law.

The very technicality which enabled the common
law to resist the influence of the civil law, together
with the possibility of tampering with its juries, led
to growing dissatisfaction with the common law courts
among litigants. They therefore petitioned the King's
council for remedies outside those of the common law.
These petitions were dealt with by the Chancellor, who
dispensed a discretionary equity which softened the
effects of the now-rigid common law. By granting a
common injunction, the Chancellor could prohibit a
litigant who had been successful in an action at com-
mon law, under pain of penalty, from enforcing his
judgment, if in the circumstances it would be unfair
for him to do so, as for example if he had been guilty
of fraud. Gradually the Court of Chancery estab-
lished itself as having a jurisdiction parallel to that
of the common law courts and as administering a
body of rules which were collectively known as “eq-
uity” and which in the course of time became al-
most as rigid as those of the common law. Equity
never, however, constituted a complete system in
itself. It remained “a gloss on the common law,” and
most of its doctrines presupposed institutions of the
common law.

By the sixteenth century, the idea was established
that the common law was a set of customs which had
stood the test of time and had acquired an absolute
quality, which made them the equivalent of justice
itself. Christopher St. Germain, a barrister of the Inner
Temple and a cosmopolitan scholar familiar with other
legal systems, wrote in his treatise on Doctor and Stu-
dent (1532, Ch. vii):

As examples of such fundamental customs, St.
Germain mentioned, inter alia, the system of courts,
trial by jury, freedom from arbitrary imprisonment,
feudal customs, and especially the principle of
primogeniture, and the form of conveyance of land
known as feoffment with livery of seisin.

The figure who in the eyes of subsequent generations
seemed to personify the common law was Sir Edward
Coke (1552-1634), who in his three Institutes and in
some crucial judgments delivered as Chief Justice, first
of Common Pleas and later of the King's Bench, re-
stated the medieval common law as it was to be found
in the cases reported in the Year Books, of whose
contents he was the acknowledged master. Urging that
“out of the old fields must come the new corn,” he
provided continuity between the medieval law and the
law of modern times. But he also ensured that the
common law would be highly technical and resistant
to change. Uninterested in any law but that of the Year
Books, he assumed that the common law was the only
law that had ever prevailed in England and held that
it was law because it was immemorial custom, and that
law of this kind constituted an artificial reason, which
only the judges could expound. One of Coke's contem-
poraries, Sir John Davies, argued that the common law
of England was “so framed and fitted to the nature
and disposition of this people as we may properly say
it is connatural to the Nation, so as it cannot possibly
be ruled by any other law” (preface to Irish Reports,
1612).

In the seventeenth-century struggle between Parlia-
ment and the Crown, the common lawyers threw their
weight onto the side of Parliament and this alliance
“made a clear issue between tradition, common law
and the medieval view [that the king was under God
and the law] on one hand and, on the other, the newer
idea of statecraft, absolutism and a supreme royal
equity” (Plucknett, p. 283).

The idea that the law which had begun life as the
custom of the king's court was in fact the result of
some indwelling of fundamental legal principles in the
life of the English people reaches its supreme statement
in the Commentaries of William Blackstone (1765). For

him common law was synonymous with unwritten law
in the sense of all law not set down in a statute or
ordinance, and he even describes as common law the
customs of a particular district or local court.

Nineteenth-century historical jurisprudence caused
this view to be abandoned. Today common law indi-
cates the form of uncodified law adopted by those
countries deriving their legal traditions from England,
particularly the United States, Canada, Australia, and
New Zealand, and is sometimes designated Anglo-
American. It connotes the case by case method of
building up the law through judicial decisions as
opposed to systematic legislative enactment. It is char-
acterized first by the doctrine of the supremacy of law,
which subjects the sovereign and its agencies to the
law and obliges them to act according to principles
and not by arbitrary will. In the United States, although
not in England, a corollary of this doctrine is the power
of the courts to declare legislation invalid. Its other
basic feature is the doctrine of judicial precedent,
which aims to combine certainty with the possibility
of growth. The doctrine thus enshrines the apparent
paradox of the common law, in that it is sometimes
spoken of as something fixed and unalterable from time
immemorial, while at other times, it is presented as
a set of customary rules capable of developing, in a
way that statutory rules are not, to meet new social
necessities.

The strength of the modern common law lies in its
treatment of concrete disputes rather than in the logi-
cal development of general principles and it is this
feature which distinguishes the common law systems
from the civil law systems, descended from the Conti-
nental Ius commune. As a body of law the common
law has inspired an intensely emotional loyalty in its
adherents: “Her soul is founded in an order older than
the gods themselves, but the joy of strife is not strange
to her, nor yet the humours of the crowd” (Pollock,
p. 2).

BIBLIOGRAPHY

For the notion of Ius commune, see F. Calasso, Medio
Evo del diritto (Milan, 1954), and most recently, L.
Lombardi, Saggio sul diritto giurisprudenziale (Milan, 1967).
For its spread throughout Europe, see P. Vinogradoff,
Roman Law in Medieval Europe, 2nd ed. (Oxford, 1929);
P. Koschaker, Europa und das römische Recht (Munich and
Berlin, 1953); H. Coing, “Die europäische Privatrechtsge-
schichte der neueren Zeit als einheitliches Forschungsge-
biet,” Ius Commune, 1 (Frankfurt, 1967), 1-33. For the me-
dieval French notion, see P. Petot, “Le droit commun en
France suivant les coutumiers,” Revue historique de droit
français et étranger, 4th sér., 38 (1960), 412-29. For English
common law generally, see C. K. Allen, Law in the Making,
7th ed. (Oxford, 1964); S. F. C. Milsom, Historical Founda-
tions of the Common Law (London, 1969); T. F. T. Pluck-
nett, Concise History of the Common Law, 5th ed. (Lon-
don, 1956). For its origins, F. Pollock and F. W. Maitland,
History of English Law Before the Time of Edward I, 2nd
ed. (Cambridge, 1898), and for recent studies, G. W. Keeton,
The Common Law and the Norman Conquest (London and
New York, 1966). For the crisis of the sixteenth century,
F. W. Maitland, “English Law and the Renaissance,” His-
torical Essays (Cambridge, 1957), pp. 133-51 (somewhat ex-
aggerating the alien threats to English law); J. G. A. Pocock,
The Ancient Constitution and the Feudal Law (Cambridge,
1957). For the main elements of the common law system,
O. W. Holmes, Jr., The Common Law (Boston, 1881). For
modern notions, see R. Pound, The Spirit of the Common
Law (Boston, 1921); more romantic, F. Pollock, The Genius
of the Common Law (New York, 1912).

PETER STEIN

[See also Equity; Heresy; Historicism; Justice; Law, An-
cient Roman, Natural; Positivism; Romanticism.]