Common law
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.[10] The British Empire spread the English legal system to its historical colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, and to the style of reasoning inherited from the English legal system.[11][12][13][14]
Common law
The main sources for the history of the common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, by whose permission images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site (The O'Quinn Law Library of the University of Houston Law Center).[78][79] Equity (law)
For much of its history, the English common law was principally developed and administered in the central royal courts: the Court of King's Bench, the Court of Common Pleas, and the Exchequer. Equity was the name given to the law which was administered in the Court of Chancery. The Judicature Reforms in the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not effect any substantive fusion, however. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy". The Common Law Origins of the Infield Fly Rule
Stevens ambitiously tried to mix understated humor with serious legal comment. He explained that the article's purpose was "to examine whether the same types of forces that shaped the development of the common law also generated the Infield Fly Rule." Noting that England was the birthplace both of common law and of proto-baseball, Stevens discussed the Knickerbocker Base Ball Club, the first team using codified baseball rules, in 1845. For the club's members, the "rules which governed their contests clearly indicate that the game was to be played by gentlemen. Winning was not the objective; exercise was." As winning, however, came to be valued over exercise when the game spread beyond its gentlemanly origins, "written rules had to be made more and more specific in order to preserve the spirit of the game." Common law
Black's Law Dictionary 10th Ed., definition 4, differentiates "common law" (or just "law") from "equity".[30][21][31] Before 1873, England had two complementary court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Illinois, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey, the appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. Roman law
By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as "Ius Commune". This "Ius Commune" and the legal systems based on it are usually referred to as civil law in English-speaking countries. Common law
Examples of common law being replaced by statute or codified rule in the United States include criminal law (since 1812,[66] U.S. federal courts and most but not all of the States have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But note that in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute. Common school
Common schools originated in New England as community funded instruments of education for all children of the region or neighborhood. These secondary schools furthered the Puritan conformity of the region by institutionalizing religion into the curriculum for the purpose of instilling good morals and obedience in the populace. The 17th-century Puritan relied upon Christian organizations, such as the "Anglican Society for the Propagation of the Gospel In Foreign Parts", for catechisms as the first grammar books. In most cases, local church clergy handled the responsibility for education in their community. With support from the community and wealthy philanthropists, clergy discerned the curriculum, material, and teachers for common schools throughout the 17th and 18th centuries. Common law
By the time of the rediscovery of the Roman law in Europe in the 12th and 13th centuries, the common law had already developed far enough to prevent a Roman law reception as it occurred on the continent.[87] However, the first common law scholars, most notably Glanvill and Bracton, as well as the early royal common law judges, had been well accustomed with Roman law. Often, they were clerics trained in the Roman canon law.[88] One of the first and throughout its history one of the most significant treatises of the common law, Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), was heavily influenced by the division of the law in Justinian's Institutes.[89] The impact of Roman law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem (typically, actions against a thing or property for the purpose of gaining title to that property; must be filed in a court where the property is located) and in personam (typically, actions directed against a person; these can affect a person's rights and, since a person often owns things, his property too) used by Bracton had a lasting effect and laid the groundwork for a return of Roman law structural concepts in the 18th and 19th centuries. Signs of this can be found in Blackstone's Commentaries on the Laws of England,[90] and Roman law ideas regained importance with the revival of academic law schools in the 19th century.[91] As a result, today, the main systematic divisions of the law into property, contract, and tort (and to some extent unjust enrichment) can be found in the civil law as well as in the common law.[92] Court of Common Pleas
A Court of Common Pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one another without involving the King. Common law (disambiguation)
Common law is a legal system named after judge-made law, which plays an important role in it. Common law
The form of reasoning used in common law is known as casuistry or case-based reasoning. 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. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law. Civil law (legal system)
Civil law takes as its major inspiration classical Roman law ("c". AD 1–250), and in particular Justinian law (6th century AD), and further expanded and developed in the late Middle Ages under the influence of canon law. The Justinian Code's doctrines provided a sophisticated model for contracts, rules of procedure, family law, wills, and a strong monarchical constitutional system. Roman law was received differently in different countries. In some it went into force wholesale by legislative act, i.e., it became positive law, whereas in others it was diffused into society by increasingly influential legal experts and scholars. Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically it has sometimes been synonymous with "republic". The noun "commonwealth", meaning "public welfare general good or advantage" dates from the 15th century. Originally a phrase (the common-wealth or the common weal – echoed in the modern synonym "public weal") it comes from the old meaning of "wealth", which is "well-being", and is itself a loose translation of the Latin res publica (republic). The term literally meant "common well-being". In the 17th century, the definition of "commonwealth" expanded from its original sense of "public welfare" or "commonweal" to mean "a state in which the supreme power is vested in the people; a republic or democratic state". Common law
Today, one-third of the world's population lives in common law jurisdictions or in systems mixed with civil law, including[16] Antigua and Barbuda, Australia,[17][18] Bahamas, Bangladesh, Barbados,[19] Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and 49 of its 50 states), and Zimbabwe. Some of these countries have variants on common law systems. Common law
A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.[93] Public law
The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the nineteenth century, but since then spread to common law countries, too. Common law
The common law constitutes the basis of the legal systems of: Legal origins theory
While English common law originated in thirteenth century England and has then been transplanted through colonization and occupation to England’s ex-colonies (United States, Canada, Australia, and several countries in Central America, Africa and Asia), the Scandinavian common law was developed in Denmark and Sweden and the German common law sprang in Germany and Switzerland [Guerriero 2016a, p. 54]. These last four countries then exported their common law model to the respective colonies or to those jurisdictions (China, Greece, Japan, Romania, South Korea, Taiwan, Thailand, and Turkey), which were never colonized but borrowed their initial legal order from the European codes considered most advanced at the time [Guerriero 2016a, p. 54]. Civil law instead has its roots in Roman law, was incorporated by the Napoleonic codes first and then by both the Austrian and Russian Civil codes, and has been then introduced via mainly colonization and occupation into continental Europe, the Near East, Latin America, Africa, and Indochina. Bulgaria, Ethiopia, Iran, and Kazakhstan instead purposely borrowed their initial legal order from either France, Russia, or England [Guerriero 2016a, p. 54]. Jus commune
The "", in its historical meaning, is commonly thought of as a combination of canon law and Roman law which formed the basis of a common system of legal thought in Western Europe from the rediscovery and reception of Justinian's Digest in the 12th and 13th centuries. In addition to this definition, the term also possibly had a narrower meaning depending upon the context in which it was used. Some scholars believe that the term, when used in the context of the ecclesiastical courts of England in the fourteenth and fifteenth century, also "meant the law that is common to the universal church, as opposed to the constitutions or special customs or privileges of any provincial church." Joint criminal enterprise
However, the origins of the doctrine may be influenced by the Common Law of England, which introduced the principle into criminal law in the UK and other Commonwealth nations such as Australia. A similar legal principle can also be found in Texas, USA, where it is known as the Law of Parties. The notion of collective liability and shared punishment for the actions of others as if all perpetrated the same deed may be much older, and was used to justify extermination of religious and cultural groups, such as the Albigensian "Heretics" and those who harbored them. Critics argue that Joint Criminal Enterprise can lead to excessive legal process and punishments, that it lowers the evidential bar in favour of prosecution, and that it runs counter to the spirit of Blackstone's formulation. Supporters argue that it ensures those contributing to or instigating a criminal act are properly made to account for their involvement. Res communis
Res communis is a Latin term derived from Roman law that preceded today’s concepts of the commons and common heritage of mankind. It has relevance in international law and common law. Jurisprudence of Catholic canon law
The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law (canon law having a significant effect upon the development of the system of equity in England) bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society. Admiralty law
Common law legal systems of Britain and the United States are in contrast to civil law legal systems which prevail in continental Europe and trace back to old Roman codified law. Although England's admiralty law was a development of continental civil law, its admiralty courts were common law courts, albeit somewhat distanced from the mainstream Kings Bench. Lawyer
Notably, England, the mother of the common law jurisdictions, emerged from the Dark Ages with similar complexity in its legal professions, but then evolved by the 19th century to a single dichotomy between barristers and solicitors. An equivalent dichotomy developed between advocates and procurators in some civil law countries; these two types did not always monopolize the practice of law, in that they coexisted with civil law notaries. Common law
Black's Law Dictionary 10th Ed., definition 3 is "General law common to a country as a whole, as opposed to special law that has only local application."[38] From at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice in "assizes". The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit.[38] The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.[38] Justice of the Common Pleas
Justice of the Common Pleas was a puisne judicial position within the Court of Common Pleas of England and Wales, under the Chief Justice. The Common Pleas was the primary court of common law within England and Wales, dealing with "common" pleas (civil matters between subject and subject). It was created out of the common law jurisdiction of the Exchequer of Pleas, with splits forming during the 1190s and the division becoming formal by the beginning of the 13th century. The court became a key part of the Westminster courts, along with the Exchequer of Pleas (qualified to hear cases involving revenue owed to the King) and the Court of King's Bench (authorised to hear cases involving the King), but with the Writ of Quominus and the Statute of Westminster, both tried to extend their jurisdiction into the realm of common pleas. As a result, the courts jockeyed for power. In 1828 Henry Brougham, a Member of Parliament, complained in Parliament that as long as there were three courts unevenness was inevitable, saying that "It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal", and that there would always be a favourite court, which would therefore attract the best lawyers and judges and entrench its position. The outcome was the Supreme Court of Judicature Act 1873, under which all the central courts were made part of a single Supreme Court of Judicature. Eventually the government created a High Court of Justice under Lord Coleridge by an Order in Council of 16 December 1880. At this point, the Common Pleas formally ceased to exist. Common Peace
The idea of the Common Peace developed out of older ideas which had gradually taken form in the political interactions of the 5th century BC in Greece. Its temporary enforcement however owes less to the realisation of the need for a permanent peace, than to the fact that it seemed to serve the interests of several successive hegemonic powers. The history of the Common Peace is therefore not only part of the history of ideas, but also of the diplomatic history of Greece in the decades between the Peloponnesian War and the arrival of king Philip II of Macedon and Alexander the Great. Common law
In one usage that is now archaic, but that gives insight into the history of the common law, "common law" referred to the pre-Christian system of law, imported by the Saxons to England, and dating to before the Norman conquest, and before there was any consistent law to be applied.[35][36] That usage is obsolete today. It is both underinclusive and overinclusive, as discussed in the section on "misconceptions". English law
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the judge-made law that developed from the early Middle Ages as described in a work published at the end of the 19th century, "The History of English Law before the Time of Edward I", in which Pollock and Maitland expanded the work of Coke (17th century) and Blackstone (18th century). Specifically, the law developed in England's Court of Common Pleas and other common law courts, which became also the law of the colonies settled initially under the crown of England or, later, of the United Kingdom, in North America and elsewhere; and this law as further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s, and developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods (pre-colonial, colonial and post-colonial), as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the Court of Chancery, the ecclesiastical courts, and the Admiralty court. Common law
Before 1938, the federal courts, like almost all other common law courts, decided the law on any issue where the relevant legislature (either the U.S. Congress or state legislature, depending on the issue), had not acted, by looking to courts in the same system, that is, other federal courts, even on issues of state law, and even where there was no express grant of authority from Congress or the Constitution. Sources of law
Over decades and centuries, principles of law have been derived from customs. The divine right of kings, natural and legal rights, human rights, civil rights, and common law are early unwritten sources of law. Canon law and other forms of religious law form the basis for law derived from religious practices and doctrines or from sacred texts; this source of law is important where there is a state religion. Historical or judicial precedent and case law can modify or even create a source of law. Legislation, rules, and regulations are form the tangible source of laws which are codified and enforceable. Law of Canada
For historical reasons, Quebec has a hybrid legal system. Private law follows the civil law tradition, originally expressed in the "Coutume de Paris" as it applied in what was then New France. Today, the "jus commune" of Quebec is codified in the Civil Code of Quebec. As for public law, it was made that of the conquering British nation after the fall of New France in 1760, that is the common law. It is important to note that the distinction between civil law and common law is not based on the division of powers set out in the Constitution Act, 1867. Therefore, legislation enacted by the provincial legislature in matters of public law, such as the Code of Penal Procedure, should be interpreted following the common law tradition. Likewise, legislation enacted by the federal Parliament in matters of private law, such as the Divorce Act, is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec. Constitutional law
The common law and the civil law jurisdictions do not share the same constitutional law underpinnings. Common law nations, such as those in the Commonwealth as well as the United States, derive their legal systems from that of the United Kingdom, and as such place emphasis on judicial precedent, whereby consequential court rulings (especially those by higher courts) are a source of law. Civil law jurisdictions, on the other hand, place less emphasis on judicial review and only the parliament or legislature has the power to effect law. As a result, the structure of the judiciary differs significantly between the two, with common law judiciaries being adversarial and civil law judiciaries being inquisitorial. Common law judicatures consequently separate the judiciary from the prosecution, thereby establishing the courts as completely independent from both the legislature and law enforcement. Human rights law in these countries is as a result, largely built on legal precedent in the courts' interpretation of constitutional law, whereas that of civil law countries is almost exclusively composed of codified law, constitutional or otherwise. The Common Law (Holmes)
The Common Law is a book that was written by Oliver Wendell Holmes Jr. in 1881, 21 years before Holmes became an Associate Justice of the Supreme Court of the United States. Canon law
The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law (legal system) bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society. Law in Africa
Modern Africa has been shaped primarily through different countries' inheritance of laws which existed in Europe through the nineteenth century. For instance, the primary sources of South Africa law were Roman-Dutch and English Common law, imports of Dutch settlements and British colonialism. Thus it is sometimes termed Anglo-Dutch law. Various lawmaking bodies have existed within South Africa over time. Yet in fact, some of the oldest legal systems began first in Africa. For instance, Ancient Egyptian law used a civil code, based on the concept of Ma'at. Tradition, rhetorical speech, social equality and impartiality were key principles. Judges kept records, which was used as precedent, although the systems developed slowly. Common law
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common law system would petition the King in person. For example, they might argue that an award of damages (at common law (as opposed to equity)) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other,[98] even though it was established by the 17th century that equity should prevail. Legal origins theory
The legal origins theory claims that the two main legal traditions or origins, civil law and common law, crucially shape lawmaking and dispute adjudication and have not been reformed after the initial exogenous transplantation by Europeans. Therefore, they affect economic outcomes to date. According to the evidence reported by the initial proponents of such a theory, countries that received civil law would display today less secure investor rights, stricter regulation, and more inefficient governments and courts than those that inherited common law. These differences would reflect both a stronger historical emphasis of common law on private ordering and the higher adaptability of judge-made law. Recent contributions however have criticized the idea that transplanted legal institutions remained intact and have documented that indeed they evolve moved by how each country solves the trade-off between the uncertainty of judge-made law and the bias possibly injected into civil law by inefficient political institutions. Crucially, these latest studies show that considering both the endogeneity between legal traditions and the economy and the evolution of legal systems over time implies that civil law can often economically dominate common law. Water law in the United States
In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. As long ago as the Institutes of Justinian, running waters, like the air and the sea, were "res communes" -- things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law. Law of the United States
The law of civil procedure governs process in all judicial proceedings involving lawsuits between private parties. Traditional common law pleading was replaced by code pleading in 24 states after New York enacted the Field Code in 1850 and code pleading in turn was subsequently replaced again in most states by modern notice pleading during the 20th century. The old English division between common law and equity courts was abolished in the federal courts by the adoption of the Federal Rules of Civil Procedure in 1938; it has also been independently abolished by legislative acts in nearly all states. The Delaware Court of Chancery is the most prominent of the small number of remaining equity courts. Common law
As used by non-lawyers in popular culture, the term "common law" connotes law based on ancient and unwritten universal custom of the people.[39][40][41][42][43] The "ancient unwritten universal custom" view was the view among lawyers and judges from the earliest times to the mid-19th century.[8] But for 100 years, lawyers and judges have recognized that the "ancient unwritten universal custom" view does not accord with the facts of the origin and growth of the law, and it is not held within the legal profession today.[8][44][45] Common law
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—citizens sworn on oath to investigate reliable 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. South African labour law
The common law of South Africa, "an amalgam of principles drawn from Roman, Roman-Dutch, English and other jurisdictions, which were accepted and applied by the courts in colonial times and during the period that followed British rule after Union in 1910," plays virtually no role in collective labour law. Initially, in fact, employment law, or "the law of master and servant," was regarded as a branch of the law of lease. As such, the common law did not concern itself directly with collective bargaining; its focus instead was on the rights and duties of individual employees and employers, as reflected in the contract on which their relationship was based. The law did not recognize claims by employees which had not been conferred by agreement. Although the role of the common law is minimal, therefore, it should be noted that the common-law contractual relationship between employer and employee underpins collective labour law in general and collective bargaining in particular. Common law
For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts.[32][33] Additionally, even before the separate courts were merged, most courts were permitted to apply both law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following: Common law
One of the major reforms of the late 19th century and early 20th century was the abolition of common law pleading requirements.[102] A plaintiff can initiate a case by giving the defendant "a short and plain statement" of facts that constitute an alleged wrong.[103] This reform moved the attention of courts from technical scrutiny of words to a more rational consideration of the facts, and opened access to justice far more broadly.[104] Commonwealth v. Hunt
One of the central themes of the cases prior to the landmark decision in "Commonwealth vs. Hunt" was the applicability of the English common law in post-revolutionary America. Whether the English common law applied—and in particular whether the common law notion that a conspiracy to raise wages was illegal applied—was frequently the subject of debate between the defense and the prosecution. For instance, in "Commonwealth v. Pullis", a case in 1806 against a combination of journeymen cordwainers in Philadelphia for conspiring to raise their wages, the defense attorneys referred to the common law as arbitrary and unknowable and instead praised the legislature as the embodiment of the democratic promise of the revolution. In ruling that a combination to raise wages was "per se" illegal, Recorder Moses Levy strongly disagreed, writing that "[t]he acts of the legislature form but a small part of that code from which the citizen is to learn his duties... [i]t is in the volumes of the common law we are to seek for information in the far greater number, as well as the most important causes that come before our tribunals." Common law
The term common law has many connotations. The first three set out here are the most-common usages within the legal community. Other connotations from past centuries are sometimes seen and are sometimes heard in everyday speech. Law in Europe
The law of Europe is diverse and changing fast today. Europe saw the birth of both the Roman Empire and the British Empire, which form the basis of the two dominant forms of legal system of private law, civil and common law. English land law
The history of English land law can be traced into Roman times, and through the Dark Ages under Saxon monarchs where, as for most of human history, land was the dominant source of social wealth. The start of an English law of real property, however, came after the Norman Invasion of 1066, when a common law was built throughout England. The new King, William the Conqueror, started standardising England's feudal rules, and compiled a reference for all land and its value in the Domesday Book of 1086. This was used to determine taxes. Feudalism meant that all land was held by the Monarch. Estates in land were granted to lords, who in turn parcelled out property to tenants. Tenants and lords had obligations of work, military service, and payment of taxation to those up the chain, and ultimately to the Crown. Most of the peasantry were bonded to their Lords of the Manor. Villeins often owed as little as 4 days work in the year. Cottars or serfs, who may have composed as much as 45 per cent of the population in 1086, were bound by law to work on the land. They could not leave without permission of their Lords. But also, even those who were classed as free men were factually limited in their freedom, by the limited chances to acquire property. Around 1187 Ranulf de Glanvill, King Henry II's Chief Justiciar composed the first major treatise of the common law, the "Tractatus de legibus et consuetudinibus regni Angliae", setting out the system of writs that people used to claim rights of property, and rights against one another. Glanvill himself died in the Third Crusade, and as discontent resulting from the crusades' cost grew, English barons forced King John to sign the Magna Carta 1215. This guaranteed rights of representation to the barons, but contained very little for "commoners". However, a number of clauses were extracted and expanded into the Charter of the Forest 1217, which did allow people access to common land, where people could hunt and fish for food. Over the centuries, the law expanded on the extent of common ownership. The Commons Act 1236 allowed the Lord of a Manor to enclose any manorial land that had previously been common, and the Statute of Westminster 1285 formalised the system of entail so that all land could pass to the heirs of a landlord. The Statute "Quia Emptores Terrarum" 1290 allowed alienation of land only by substitution of the title holder, halting creation of further sub-tenants. In 1256, the second major treatise, by Henry de Bracton, "De Legibus et Consuetudinibus Angliae" set out the laws of property or "things", alongside laws of "persons" and "actions".
Feudalism had not always been a part of English society, rather than being positively imposed by the monarchs prior to the Norman Invasion. However, from 1348 everything changed as the Black Death swept through Europe, killing a third of the population. People like the poet Geoffrey Chaucer had seen subservience as part of a natural social order, ordained by God. But if landowners had themselves survived the plague, the peasants' labour on the land had become very scarce. Ironically, the surviving peasants were in a greater position of economic power, in claims or bargaining for wages. Feudalism began to break down. First, serfs could go undergo "commutation", where the lord simply agreed to accept money rents from tenants instead of labour services. This did not mean freedom itself, but abandoning forced labour and payments in kind to landlords meant the open evidence of servility was concealed. In disputes, royal courts were increasingly bias toward declaring a peasant was free. Second, through an act of manumission lords could voluntarily grant freedom and this was increasingly done, after the plague, if the serf or a relative made a payment of money. Third, the common law stated that if a serf lived on free soil, as in a chartered town or Royal demesne land, for a year and a day, they would become free. The nobility and the King reacted to the rising bargaining power of the peasantry by fixing wages, and violently suppressing any uprisings, like the Peasants' Revolt in 1381. Yet this combination of factors, slowly but surely, meant that by 1485 just one per cent of the population were left in bondage. Around 1481, a judge of the Common Pleas named Thomas de Littleton produced the first treatise organised by subject rather than writs, on property law, the "Treatise on Tenures". Formal subservience was increasingly seen as a social scar. In 1523 Justice Anthony Fitzherbert wrote that the remainder of bondmen was "the greatest inconvenience that now is suffred by the lawe." But if more people were formally free from a landlord, people's factual freedom was still constrained because they had no property themselves. More landlords were enclosing pastures that had been open for commoners to use, and destroying people's houses, especially for sheep farming. The crown, and Lord Chancellors like Sir Thomas More, had opposed this to some extent, with a series of Anti-Enclosure Acts from 1489. These required that any houses destroyed be rebuilt, but if not half the additional profits would go to the Crown. The Crown itself claimed an inherent right to any valuable metals found on land in 1568, and people who had less than four acres of land were prohibited from building homes by the Erection of Cottages Act 1588. The final, formal end of feudal land tenure in England came only after the English Civil War. When the monarchy was restored Parliament ensured with the Tenures Abolition Act 1660 that landlords' obligations of service and military provision were replaced by monetary payments and an annual payment financed by taxation.
Over the same period, behind the momentous shifts in land's social significance, legal developments in the law of property revolved around the split between the courts of common law and equity. The courts of common law (the Court of Common Pleas and the Court of the King's Bench) took a strict approach to the rules of title to land, and how many people could have legal interests in land. However, the King had the power to hear petitions and overturn cases of common law. He delegated the hearing of petitions to his Lord Chancellor, whose office grew into a court. During the crusades, landowners who went to fight would transfer title to a person they trusted so that feudal services could be performed and received. But some who survived had returned only to find that the people they entrusted were refusing to transfer title back. They sought justice with the Lord Chancellor, and his Court of Chancery determined that the true "use" or "benefit" of the land did not belong to the person on the title (or the feoffee who held seisin). Unlike the common law judges, the Chancellor held the "cestui que use", the owner in equity, could be a different person, if this is what good conscience dictated. This recognition of a split in English law, between legal and equitable owner, between someone who controlled title and another for whose benefit the land would be used, was the beginning of trust law. It was similarly useful among Franciscan friars, who would transfer title of land to others as they were precluded from holding property by their vows of poverty. Uses or trusts were also employed to avoid the payment of feudal dues. If a person died, the law stated a landlord was entitled to money before the land passed to heir, and the whole property under the doctrine of escheat if there were no heirs. Transferring title to a group of people for common use could ensure this never happened, because if one person died he could be replaced, and it was unlikely for all to die at the same time. King Henry VIII saw that this deprived the Crown of revenue, and so in the Statute of Uses 1535 he attempted to prohibit them, stipulating all land belonged in fact to the "cestui que use". However, when Henry VIII was gone, the Court of Chancery held that it had no application where land was leased. Moreover, the primacy of equity over the common law was reasserted, supported by King James I in 1615, in the "Earl of Oxford's case". The institution of the use continued, as new sources of revenue from the mercantile exploits in the New World decreased the Crown's reliance on feudal dues. By the early 18th century, the use had formalised into a trust: where land was settled to be held by a trustee, for the benefit of another, the Courts of Chancery recognised the beneficiary as the true owner in equity.
Over the 18th century, the law of real property mostly came to a standstill in legislation, but principles continued to develop in the courts of equity, notably under Lord Nottingham (from 1673–1682), Lord King (1725–1733), Lord Hardwicke (1737–1756), Lord Henley (1757–1766), and Lord Eldon (1801–1827). As national and global trade expanded, the power of a new monied class of business men was growing, and the economic and political importance of land was diminishing with it. The moral philosopher and father of economics, Adam Smith, reflected these changes as he argued in "The Wealth of Nations" that landowners position allowed them to extract rents from others in return for very little. In the 19th century, a growing liberal movement for reform produced three major results. First, there was increasing pressure to dismantle the privileges of the landed aristocracy. The most direct reform was to gradually abolition the "strict settlement", through the Settled Land Acts of 1882–1925. An owner of land could direct that property on his death would only pass down the line of his relations, thus preventing it being sold to anyone on the market. This also included the view that all land should be put on a register, so as to ease its ability to be marketed. The Land Transfer Act 1875 introduced a voluntary system, but it was not taken up. After the 1906 general election the new Chancellor of the Exchequer, David Lloyd George, in his People's Budget of 1909 introduced a tax on land to force it onto the market. This provoked a constitutional crisis, as the hereditary House of Lords vetoed it, forcing fresh elections. But the Liberal government was returned and it abolished the Lords right of veto in the Parliament Act 1911. By then, land registration reforms were a minor political issue and only really opposed by solicitors who earned sizeable conveyancing fees. Eventually, the Land Registration Act 1925 required any dealing with property triggered compulsory registration. Second, the Court of Chancery, though it may have mitigated the petty strictnesses of the common law of property, was seen as cumbersome and arcane. It was subjected to ridicule in books like Charles Dickens' "Bleak House" and his fictional case of "Jarndyce v Jarndyce", a Chancery matter that nobody understood and dragged on for years and years. Largely this was because there were only two judges administering equitable principles, so from 1873 to 1875, the common law and equity courts were merged into one hierarchy. Under the Supreme Court of Judicature Act 1875, equitable principles would prevail in case of conflict. Third, in most counties and boroughs, the ability to vote for members of parliament had been tied to possession of property in land. From the Great Reform Act 1832, to the Reform Act 1867, and the Representation of the People Act 1918, the connection between property and the vote was gradually reduced and then abolished. Together with the Parliament Act 1911, a more democratic constitution had emerged, though it was only in 1928 that the voting age for men and women became equal and only in 1948 that the double votes and extra constituencies for graduates of English and Welsh universities were removed. By the end of the First World War, the power of the old landed aristocracy had largely been broken.
Over the twentieth century, land law became increasingly social in character. First, from the Housing Act 1919 and the post war government's policy of building "homes fit for heroes" more and more houses were built, and maintained, by local governments. In private accommodation, new rights were enacted for tenants against their landlords, with some security of tenure and rent regulation, a break on unfettered "freedom of contract". The policy was halted by the Housing Act 1980, which sought to privatise properties by introducing a "right to buy" one's council home. At the same time, rights for tenants, and constraints on rental increases were reduced, albeit that tenants did retain some minima of rights, for example under the Landlord and Tenant Act 1985 and the Protection from Eviction Act 1977. Second, property was increasingly used as a source of finance for business, and similarly became source of profit for banks, mortgage lenders and real estate investment trusts. This fact drove changes in the market for mortgage regulation, while the growing financial interest in land tended to conflict with family life. As the UK came closer to gender equality, women as much as men contributed to the purchase of homes, as well as contributing to raising families and children. In 1970, in "Pettitt v Pettitt", Lord Diplock remarked that "the wider employment of married women in industry, commerce and the professions and the emergence of a property-owning, particularly a real-property-mortgaged-to-a-building-society-owning, democracy" had compelled courts to acknowledge contributions to the home and family life as potentially generating proprietary interests. However, if banks sought to repossess homes from people who had defaulted on mortgage repayments, the courts were faced with a choice of whether to prefer those economic interests over social values. The membership of the United Kingdom in the European Convention on Human Rights meant that article 8, on the right to a private and family life, could change the freedom of banks or landlords to evict people, particularly where children's stability and upbringing were at stake, though by the early twenty-first century the case law had remained cautious. Third, land use in general was subject to a comprehensive regulatory framework. The old common laws between neighbours, of easements, covenants, nuisance and trespass were largely eclipsed by locally and democratically determined planning laws, environmental regulation, and a framework for use of agricultural resources. Common law
In common law jurisdictions (in the sense opposed to "civil law"), legislatures operate under the assumption that statutes will be interpreted against the backdrop of the pre-existing common law. As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 (1993): Commons
The term "commons" derives from the traditional English legal term for common land, which are also known as "commons", and was popularised in the modern sense as a shared resource term by the ecologist Garrett Hardin in an influential 1968 article called The Tragedy of the Commons. As Frank van Laerhoven and Elinor Ostrom have stated; "Prior to the publication of Hardin's article on the tragedy of the commons (1968), titles containing the words 'the commons', 'common pool resources', or 'common property' were very rare in the academic literature." Labor history of the United States
These conditions led to the first labor combination cases in America. Over the first half of the 19th century, there are twenty-three known cases of indictment and prosecution for criminal conspiracy, taking place in six states: Pennsylvania, Maryland, New York, Louisiana, Massachusetts, and Virginia. The central question in these cases was invariably whether workmen in combination would be permitted to use their collective bargaining power to obtain benefits—increased wages, decreased hours, or improved conditions—which were beyond their ability to obtain as individuals. The cases overwhelmingly resulted in convictions. However, in most instances the plaintiffs' desire was to establish favorable precedent, not to impose harsh penalties, and the fines were typically modest.
One of the central themes of the cases prior to the landmark decision in "Commonwealth v. Hunt", which settled the legality of unions, was the applicability of the English common law in post-revolutionary America. Whether the English common law applied—and in particular whether the common law notion that a conspiracy to raise wages was illegal applied—was frequently the subject of debate between the defense and the prosecution. For instance, in "Commonwealth v. Pullis", a case in 1806 against a combination of journeymen cordwainers in Philadelphia for conspiracy to raise their wages, the defense attorneys referred to the common law as arbitrary and unknowable and instead praised the legislature as the embodiment of the democratic promise of the revolution. In ruling that a combination to raise wages was "per se" illegal, Recorder Moses Levy strongly disagreed, writing that "[t]he acts of the legislature form but a small part of that code from which the citizen is to learn his duties . . . [i]t is in the volumes of the common law we are to seek for information in the far greater number, as well as the most important causes that come before our tribunals." Insurance law
Common law jurisdictions in former members of the British empire, including the United States, Canada, India, South Africa, and Australia ultimately originate with the law of England and Wales. What distinguishes common law jurisdictions from their civil law counterparts is the concept of judge-made law and the principle of stare decisis - the idea, at its simplest, that courts are bound by the previous decisions of courts of the same or higher status. In the insurance law context, this meant that the decisions of early commercial judges such as Mansfield, Lord Eldon and Buller bound, or, outside England and Wales, were at the least highly persuasive to, their successors considering similar questions of law. Common Law (1996 TV series)
"Common Law" focuses on John Alvarez (Greg Giraldo), the seemingly-token Latino at a large, WASPy law firm. John has a degree from Harvard Law School, but never forgets his working-class Queens roots, nor the idea that law is about protecting the "little guy" from the major corporations that are his firms' key clients. He has started a clandestine affair with fellow attorney Nancy Slaton (Megyn Price), clandestine because the firm forbids lawyers from dating each other to minimize claims of sexual harassment. To the disgust of his barber father, Luis (Gregory Sierra), John wears his hair long and plays guitar; his father views him as a hippie. Greg Giraldo was in reality a graduate of Harvard Law School nearly top of his class, and became a lawyer for a while before becoming a comedian. After a year as an attorney, Giraldo fell out of love with the profession and launched his comedy career, only referring to his law background very occasionally on the stand-up circuit, until he starred in this series. Civil law (legal system)
An important common characteristic of civil law, aside from its origins in Roman law, is the comprehensive codification of received Roman law, i.e., its inclusion in civil codes. The earliest codification known is the Code of Hammurabi, written in ancient Babylon during the 18th century BC. However, this, and many of the codes that followed, were mainly lists of civil and criminal wrongs and their punishments. The codification typical of modern civilian systems did not first appear until the Justinian Code. Common Law (1996 TV series)
Common Law is an American television sitcom that premiered on ABC on September 28, 1996. The show stars Greg Giraldo as a Latino lawyer at a mostly white law firm. The series was created by Rob LaZebnik, and produced by Witt/Thomas Productions in association with Warner Bros. Television. Common law
Crane, Elaine Forman (2011), Witches, Wife Beaters, and Whores: Common Law and Common Folk in Early America. Ithaca, NY: Cornell University Press. Milsom, S.F.C., A Natural History of the Common Law. Columbia University Press (2003) ISBN0231129947 Milsom, S.F.C., Historical Foundations of the Common Law (2nd ed.). Lexis Law Publishing (Va), 1981) ISBN0406625034 Civil law (legal system)
Consequently, neither of the two waves of Roman influence completely dominated in Europe. Roman law was a secondary source that was applied only when local customs and laws were found lacking on a certain subject. However, after a time, even local law came to be interpreted and evaluated primarily on the basis of Roman law, since it was a common European legal tradition of sorts, and thereby in turn influenced the main source of law. Eventually, the work of civilian glossators and commentators led to the development of a common body of law and writing about law, a common legal language, and a common method of teaching and scholarship, all termed the "jus commune", or law common to Europe, which consolidated canon law and Roman law, and to some extent, feudal law. Law
However, the system became overly systematized—overly rigid and inflexible. As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticized as erratic, that it varied according to the length of the Chancellor's foot. Over time, courts of equity developed solid principles, especially under Lord Eldon. In the 19th century in England, and in 1937 in the U.S., the two systems were merged. Common law
The law of India, Pakistan, and Bangladesh are largely based on English common law because of the long period of British colonial influence during the period of the British Raj. Common law
In law, common law (also known as judicial precedent or judge-made law, or case law) is that body of law derived from judicial decisions of courts and similar tribunals.[1][2][3][4][5][6] The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision).[7] The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges,[3][8] stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.[9] Common law
Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law[85]—"legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. Constitution.[24] Justice Oliver Wendell Holmes, Jr. summarized centuries of history in 1917, "judges do and must legislate."[86] There are legitimate debates on how the powers of courts and legislatures should be balanced. However, the view that courts lack law-making power is historically inaccurate and constitutionally unsupportable. English trust law
Statements of equitable principle stretch back to the Ancient Greeks in the work of Aristotle, while examples of rules analogous to trusts were found in the Roman law testamentary institution of the "fideicommissum", and the Islamic proprietary institution of the "Waqf". However, English trusts law is a largely indigenous development that began in the Middle Ages, from the time of the 11th and 12th century crusades. After William the Conqueror became King in 1066, one "common law" of England was created. Common law courts regarded property as an indivisible entity, as it had been under Roman law and continental versions of civil law. During the crusades, landowners who went to fight would transfer title to their land to a person they trusted so that feudal services could be performed and received. But many who returned found that the people they entrusted refused to transfer their title deed back. Sometimes, common law courts would not acknowledge that anybody had rights in the property except the holder of the legal title deeds. So claimants petitioned the King to sidestep the common law courts. The King delegated hearing of petitions to his Lord Chancellor, who established the Court of Chancery as more cases were heard. Where it appeared "inequitable" (i.e. unfair) to let someone with legal title hold onto land, the Lord Chancellor could declare that the real owner "in equity" (i.e. in all fairness) was another person, if this is what good conscience dictated. The Court of Chancery determined that the true "use" or "benefit" of property did not belong to the person on the title (or the feoffee who held seisin). The "cestui que use", the owner in equity, could be a different person. So English law recognised a split between legal and equitable owner, between someone who controlled title and another for whose benefit the land would be used. It was the beginning of trust law. The same logic was useful for Franciscan friars, who would transfer title of land to others as they were precluded from holding property by their vows of poverty. When the courts said that one person's legal title to property was subject to an obligation to use that property for another person, there was a trust.
During the 15th century and 16th century, "uses" or "trusts" were also employed to avoid the payment of feudal taxation. If a person died, the law stated a landlord was entitled to money before the land passed to an heir, and the landlord got all of the property under the doctrine of escheat if there were no heirs. Transferring title to a group of people for common use could ensure this never happened, because if one person died he could be replaced, and it was unlikely for all to die at the same time. King Henry VIII saw that this deprived the Crown of revenue, and so in the Statute of Uses 1535 he attempted to prohibit uses, stipulating all land belonged in fact to the "cestui que use". Henry VIII also increased the role of the Court of Star Chamber, a court with criminal jurisdiction that invented new rules as it thought fit, and often this was employed against political dissidents. However, when Henry VIII was gone, the Court of Chancery held that the Statute of Uses 1535 had no application where land was leased. People started entrusting property again for family legacies. Moreover, the primacy of equity over the common law soon was reasserted, and this time supported by King James I in 1615, in the "Earl of Oxford's case". Due to its deep unpopularity the "criminal equity" jurisdiction was abolished by the Habeas Corpus Act 1640. Trusts grew more popular, and were tolerated by the Crown, as new sources of revenue from the mercantile exploits in the New World decreased the Crown's reliance on feudal dues. By the early 18th century, the use had formalised into a trust: where land was settled to be held by a trustee, for the benefit of another, the Courts of Chancery recognised the beneficiary as the true owner in equity.
By the late 17th century, it had become an ever more widely held view that equitable rules and the law of trusts varied unpredictably, as the jurist John Selden remarked, according to the size of the "Chancellor's foot". Over the 18th century English property law, and trusts with it, mostly came to a standstill in legislation, but the Court of Chancery continued to develop equitable principles notably under Lord Nottingham (from 1673–1682), Lord King (1725–1733), Lord Hardwicke (1737–1756), and Lord Henley (1757–1766). In 1765, the first Professor of English law, William Blackstone wrote in his "Commentaries on the Laws of England" that equity should not be seen as a distinct body of rules, separate from the other laws of England. For example, although it was "said that a court of equity determines according to the spirit of the rule and not according to the strictness of the letter," wrote Blackstone, "so also does a court of law" and the result was that each system of courts was attempting to reach "the same principles of justice and positive law". Blackstone's influence reached far. Chancellors became more concerned to standardise and harmonise equitable principles. At the start of the 19th century in "Gee v Pritchard", referring to John Selden's quip, Lord Eldon (1801–1827) said 'Nothing would inflict upon me greater pain in quitting this place than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot.' The Court of Chancery was meant to have mitigated the petty strictnesses of the common law of property. But instead, came to be seen as cumbersome and arcane. This was partly because until 1813, there was only the Lord Chancellor and the Master of the Rolls working as judges. Work was slow. In 1813, a Vice-Chancellor was appointed, in 1841 two more, and in 1851 two Lord Justices of Appeal in Chancery (making seven). But this did not save it from ridicule. In particular, Charles Dickens (1812–1870), who himself worked as a clerk near Chancery Lane, wrote "Bleak House" in 1853, depicting a fictional case of "Jarndyce v Jarndyce", a Chancery matter about wills that nobody understood and dragged on for years and years. Within twenty years, separate courts of equity were abolished. Parliament merged the common law and equity courts into one system with the Supreme Court of Judicature Act 1873. Equitable principles would prevail over common law rules in case of conflict, but the separate identity of equity had ended. The separate identity of the trust, however, continued as strongly as before. In other parts of the Commonwealth (or the British Empire at the time) trust law principles, as then understood, were codified for the purpose of easy administration. The best example is the Indian Trusts Act 1882, which described a trust as meaning "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the bearer".
Over the 20th century, trusts came to be used for multiple purposes beyond the classical role of parcelling out wealthy families' estates, wills, or charities. First, as more working-class people became more affluent, they began to be able to save for retirement through occupational pensions. After the Old Age Pensions Act 1908, everyone who worked and paid National Insurance would probably have access to the minimal state pension, but if people wanted to maintain their living standards, they would need more. Occupational pensions would typically be constituted through a trust deed, after being bargained for by a trade union under a collective agreement. After World War Two, the number of people with occupational pensions rose further, and gradually regulation was introduced to ensure that people's "pension promise" was protected. The settlor would usually be the employer and employee jointly, and the savings would be transferred to a trustee for the benefit of the employee. Most regulation, especially after the Robert Maxwell scandals and the Goode Report, was directed at ensuring that the employer cannot dominate, or abuse its position through undue influence over the trustee or the trust fund. The second main use of the trust came to be in other financial investments, though not necessarily for retirement. The unit trust, since their launch in 1931, became a popular vehicle for holding "units" in a fund that would invest in various assets, such as company shares, gilts or government bonds or corporate bonds. One person investing alone might not have much money to spread the risk of his or her investments, and so the unit trust offered an attractive way to pool many investors wealth, and share the profits (or losses). Nowadays, unit trusts have been mostly superseded by Open-ended investment companies, which do much the same thing, but are companies selling shares, rather than trusts. Nevertheless, trusts are widely used, and notorious in offshore trusts in "tax havens", where people hire an accountant or lawyer to make an argument that shifting assets in some new way will avoid tax. The third main contemporary use of the trust has been in the family home, though not as an expressly declared trust. As gender inequality began to narrow, both partners to a marriage would often be contributing money, or work, to pay the mortgage, make their home, or raise children together. A number of members of the judiciary became active from the late 1960s in declaring that even if one partner was not on the legal title deeds, she or he would still have an equitable property interest in the home under a "resulting trust" or (more normally today) a "constructive trust". In essence the courts would acknowledge the existence of a property right, without the trust being expressly declared. Some courts said it reflected an implicit common intention, while others said the use of the trust reflected the need to do justice. In this way, trusts continued to fulfill their historical function of mitigating strict legal rules in the interests of equity. Corporate law
The law of business organizations originally derived from the common law of England, and has evolved significantly in the 20th century. In common law countries today, the most commonly addressed forms are:
The proprietary limited company is a statutory business form in several countries, including Australia. Many countries have forms of business entity unique to that country, although there are equivalents elsewhere. Examples are the limited liability company (LLC) and the limited liability limited partnership (LLLP) in the United States. Other types of business organizations, such as cooperatives, credit unions and publicly owned enterprises, can be established with purposes that parallel, supersede, or even replace the profit maximization mandate of business corporations. Colonial American bastardy laws
Common law refers to decisions that apply throughout a region. A judge or magistrate normally comes to a decision on a particular case, then that decision becomes the basis for future decisions on similar cases. In England, evidence of common law existed as early as the tenth century. By 1135, most of the legal language used in legal decisions had appeared within the country.  Law
Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. Codifications date back millennia, with one early example being the Babylonian "Codex Hammurabi". Modern civil law systems essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts were rediscovered by late medieval Western Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate, "iudex", was chosen to adjudicate. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from the laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529–534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the "Corpus Juris Civilis". As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." The Justinian Code remained in force in the East until the fall of the Byzantine Empire. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law, continued to spread throughout Europe until the Enlightenment; then, in the 19th century, both France, with the "Code Civil", and Germany, with the "Bürgerliches Gesetzbuch", modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (e.g. Greece), but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and China to most of Central and Latin America. With the exception of Louisiana's Civil Code, the United States follows the common law system described below. Sources of law
Equity is a source of law peculiar to England and Wales. Equity is the case law developed by the (now defunct) Court of Chancery. Equity prevails over common law, but its application is discretionary. Equity's main achievements are: trusts, charities, probate, & equitable remedies. There are a number of equitable maxims, such as: “He who comes to equity must come with clean hands”. Law of the United Kingdom
Similar to other former colonies, Commonwealth realms also share a common legal history with the UK. For example, Canada underwent a long period of patriation of its constitution, beginning with the Constitution Act, 1867 and ending with the Constitution Act, 1982. Like their southern neighbors, the Proclamation of 1763 extended English Common law to all the Canadian colonies, including Nova Scotia (which being Scottish might have operated under Scots law). (French civil law was later re-applied to Quebec.) Brocard (law)
Although the Romans first came to Britain in 55 BC, Roman Law has had negligible influence on English common law. Latin legal phrases are used in English only because Latin was the "lingua franca" of the Medieval era. Although some of these phrases are in common use in law, such as "res ipsa loquitur", "novus actus interveniens", "talem qualem", "de minimis non curat lex", and "consensus ad idem", the common law is not premised on the principles of civil law, and their use is being replaced by that of vernacular substitutes. For example, "Black's Law Dictionary" previously included numerous brocards among its entries. Civil law (legal system)
Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent, or "stare decisis"). Common law
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims. Law of the Republic of Ireland
Ireland was the subject of the first extension of England's common law legal system outside England. While in England the creation of the common law was largely the result of the assimilation of existing customary law, in Ireland the common law was imported from England supplanting the customary law of the Irish. This, however, was a gradual process which went hand-in-hand with English (and later, British) influence in Ireland. Common land
Most commons are based on ancient rights under British common law, which pre-date statutes passed by the Parliament of England. The exact rights which apply to individual commons were in some cases documented, but more often were based on long-held traditions. A major reform began in 1965, with a national register of common land which recorded the land ownership and the rights of any commoners, and two other important statutes have followed. Common law
The centuries-old authority of the common law courts in England to develop law case by case and to apply statute law[85]—"legislating from the bench"— is a traditional function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution.[24] Justice Oliver Wendell Holmes, Jr. summarized centuries of history in 1917, "judges do and must legislate” (in the federal courts, only interstitially, in state courts, to the full limits of common law adjudicatory authority).[86] Common law
(a) pure common lawarising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law[22] and the law of torts.[23][24] (b) interstitial common lawcourt decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called "interstitial common law", includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.[1] Colonial American bastardy laws
During the seventeenth century, when settlers started establishing permanent settlements in North America, decisions concerning how the new legal system would work needed to be decided. The people who established the New England colonies came to the new world so that they could create a new society that fashioned itself on the rules and teachings of their religion. The Puritans who founded the colonies of Connecticut and Massachusetts created many rules that had basis in the Puritan faith. However, differences occurred within each colony as to the application of the law. For example, laws created in Massachusetts or Connecticut differed from laws created in Pennsylvania. Some of the differences in the rules within colonies came from the fact that different groups with different ideological backgrounds founded each colony. The Puritans founded the New England colonies, while the Quakers led by William Penn founded the colony of Pennsylvania. Due to the strong religious background of these colonies, colonists sought changes and improvements to the English common law. In many situations, the colonists would use a particular aspect of common law to build the foundation of a legal principle, but the details, such as the wording, implementation, and enforcement of said law fell to the colonists. The colonists did not want a carbon copy of English common law, as many of them left England and Europe in dispute of those laws, nor did the colonists decide upon a single, unified set of laws to govern the colonies as a large group. The colonies sought the means to create a legal system that looked out for each individual colony’s interests. If English common law coincided with what the colonists wanted, then the law remained unaltered. However, if the common law did not represent all of what the colonists wanted, they sought the freedom to change laws to something that best suited them. Plymouth General Court
The General Court of the Colony of New Plymouth was founded in 1620 when the Pilgrims came to New England, and the General Court served as the colony's legislature and judicial court. In 1636 the Court created North America's first written legal code with a set of statutes including a rudimentary bill of rights protecting traditional liberties such as the right to a jury trial. The early law of the colony was based roughly on English common law and Mosaic law, but the judicial structure resembled local manor and borough courts in England rather than the higher King's Court, which created the common law. The early Plymouth General Court met within the fort on Burial Hill near Cole's Hill in downtown Plymouth. Law
Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland, the U.S. state of Louisiana, and the Canadian province of Quebec). In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs. The concept of a "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges that had authority to create an institutionalized and unified system of law "common" to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or "Magna Carta" of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralized. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a systematized process of developing common law. Court of Chancery
The idea of fusing the common-law and equity courts first came to prominence in the 1850s; although the "Law Times" dismissed it as "suicide" in 1852, the idea gained mainstream credibility, and by the end of the year the "Times" was writing that there was "almost unanimity" of opinion that the existence of two separate systems was "the parent of most of the defects in the administration of our law". Much of the impetus for fusion came from pressure groups and lawyers' associations. They partially succeeded with the Common Law Procedure Act 1854 and Chancery Amendment Act 1858, which gave both courts access to the full range of remedies. Until then, the common-law courts were limited to granting damages, and the Chancery was limited to granting specific performance or injunctions. The County Courts (Equity Jurisdiction) Act 1865 gave the county courts the authority to use equitable remedies, although it was rarely used. The Lord Chancellors during this period were more cautious, and despite a request by the lawyers' associations to establish a Royal Commission to look at fusion, they refused to do so. Common law
Black's Law Dictionary 10th Ed., definition 2, differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions.[11][12] Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.[26] Civil law (legal system)
Where codes exist, the primary source of law is the law code, a systematic collection of interrelated articles, arranged by subject matter in some pre-specified order, that explain the principles of law, rights and entitlements, and how basic legal mechanisms work. Law codes are simply laws enacted by a legislature, even if they are in general much longer than other laws. Other major legal systems in the world include common law, Islamic law, Halakha, and canon law. Common law
Oliver Wendell Holmes, Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions."[53] Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".[54] Custom (law)
The modern codification of civil law developed from the tradition of medieval custumals, collections of local customary law that developed in a specific manorial or borough jurisdiction, and which were slowly pieced together mainly from case law and later written down by local jurists. Custumals acquired the force of law when they became the undisputed rule by which certain rights, entitlements, and obligations were regulated between members of a community. Some examples include Bracton's "De Legibus et Consuetudinibus Angliae" for England, the "Coutume de Paris" for the city of Paris, the "Sachsenspiegel" for northern Germany, and the many "fueros" of Spain. Doctors' Commons
While the English Common Law, unlike the legal systems on the European continent, developed mostly independently from Roman Law, some specialised English courts applied the Roman-based civil law. This is true of the ecclesiastical courts, whose practice even after the English Reformation continued to be based on the canon law of the Roman Catholic Church, but also of the admiralty courts. The advocates practising in these courts were trained in Canon law (before the Reformation) and Roman law (after the Reformation) at the universities of Oxford and Cambridge. The civilian legal profession was split like its common law counterpart. The advocates had a role similar to that of barristers in the common law courts. Common good
Under one name or another, the common good has been a recurring theme throughout the history of political philosophy. As one contemporary scholar observes, Aristotle used the idea of "the common interest" ("to koinei sympheron," in Greek) as the basis for his distinction between "right" constitutions, which are in the common interest, and "wrong" constitutions, which are in the interest of rulers; Saint Thomas Aquinas held "the common good" ("bonum commune," in Latin) to be the end of law and government; John Locke declared that "the peace, safety, and public good of the people" are the ends of political society, and further argued that "the well being of the people shall be the supreme law"; David Hume contended that "social conventions" are adopted and given moral support in virtue of the fact that they serve the "public" or "common" interest; James Madison wrote of the "public," "common," or "general" good as closely tied with justice and declared that justice is the end of government and civil society; and Jean-Jacques Rousseau understood "the common good" ("le bien commun", in French) to be the object of a society's general will and the highest end pursued by government. Common law
The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.[55] In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences). South African criminal law
Common Purpose: Active Association
The common-purpose rule originated in English law and was introduced into South Africa via the Native Territories’ Penal Code. The much-publicised murder conviction of the “Sharpeville Six” in terms of the common-purpose doctrine, in S v Safatsa 1988 (1) SA 868 (A), highlighted the significance of the common-purpose doctrine in the context of the administration of criminal justice in South Africa. The controversial imposition of the death penalty on the Six also played a significant role in strengthening the call for the abolition or reassessment of the death penalty in South Africa.
Evidence of the specific participation of the Sharpeville Six in the murder of the deputy-mayor of Lekoa was meagre, aside from the fact that they had joined the crowd of about a hundred persons that attacked the deceased’s house in Sharpeville. It was not possible to determine which members of the mob had been personally responsible for killing the mayor. 
Nevertheless, there was some evidence to implicate the Six in the subsequent killing of the deceased. He was killed by stoning and burning perpetrated by some members of the crowd, but it was not possible to determine which specific members had participated directly in the killing.
Accused number 1 had grabbed hold of the deceased, wrestled with him for possession of his pistol, and thrown the first stone at the deceased, which felled him.
Accused number 2 had thrown stones at the deceased and at his house. After the deceased’s house had been set alight, accused number 2 had thrown a stone at the deceased which had struck him on his back.
Accused number 3 had grabbed the deceased, wrestled with him for possession of his pistol, and succeeded in dispossessing him of the weapon.
Accused number 4 was part of the crowd which converged on the deceased’s house; she had shouted repeated exhortations to the crowd to kill the deceased (since the deceased was shooting at them) and had slapped a woman who had remonstrated with the crowd not to burn the deceased.
Accused numbers 5 and 6 had been part of the vanguard of the crowd which had converged on the deceased’s house and stoned it, but they were not seen to have thrown any stones themselves, and were ultimately acquitted on the basis that there was insufficient evidence to conclude that they shared the requisite intent to kill at the relevant time.
Accused number 7 had made petrol bombs, set the deceased’s house alight, and pushed the deceased’s car into the street and set it alight.
Accused number 8 had also made petrol bombs and handed them out with instructions, had commanded the mob to set the deceased’s house on fire, and had assisted in pushing the car into the street.
The Appellate Division, in a unanimous judgment, approved the conviction of the Six on the basis of the doctrine of common purpose. The court pointed out that the intention of each participant must be considered, together with the question of whether or not each had the requisite dolus in respect of the death. The court traced the historical development of the doctrine, and found that “it would constitute a drastic departure from a firmly established practice to hold now that a party to a common purpose cannot be convicted of murder unless a causal connection is proved between his conduct and the death of the deceased. I can see no good reason for warranting such a departure.”
In S v Mgedezi 1989 (1) SA 687 (A), the Appellate Division drew a distinction between common-purpose liability
• where there is a prior agreement, expressed or implied, to commit a crime (the mandate situation); and
• where there is no such prior agreement.
In the latter situation, certain additional requirements have to be satisfied before the principle of imputation, which is the characteristic of common-purpose liability, can arise.
In S v Mgedezi, the court held that, in the absence of proof of a prior agreement, an accused who was not shown to have contributed causally to the killing or wounding of the victims could be held liable for those events on the basis of Safatsa only if certain prerequisites were satisfied: 
• he must have been present at the scene where the violence was being committed;
• he must have been aware of the assault on the victims;
• he must have intended to make common cause with those who were actually perpetrating the assault;
• he must have manifested his sharing of a common purpose with the perpetrators by himself performing some act of association with the conduct of the others; and
• there must be the requisite mens rea. In respect, therefore, of the killing of the deceased, he must have intended them to be killed, or must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
In S v Thebus 2003 (6) SA 505 (CC), the Constitutional Court considered the active-association form of common purpose. The court held that, in its then-current form, the doctrine violated a number of constitutional rights. The formulation in Mgedezi, however, passed constitutional muster.
It can no longer be said, then, that common-purpose doctrine is part of the old order, since it has been ratified as constitutional in the new one.
Thebus has been criticised, though, for having dispensed with the causation element, and for its infringement on the presumption of innocence and the requirement that the prosecution prove each element of the crime. 
See Burchell 580-588; Snyman 263-272. Politics of the United Kingdom
Both English law, which applies in England and Wales, and Northern Ireland law are based on common-law principles. The essence of common-law is that law is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them. The Courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Supreme Court of the United Kingdom is the highest court in the land for both criminal and civil cases in England, Wales, and Northern Ireland and any decision it makes is binding on every other court in the hierarchy. Public law
Rule of law, the idea that the administration of the state should be controlled by a set of laws, originated in Greek Antiquity and was revitalized by modern philosophers in France (Rousseau), Germany (Kant) and Austria in the 18th century. It is related to the strong position of the central government in the era of enlightened absolutism, and was inspired by the French Revolution and enlightenment. It developed hand in hand with the creation of civil codes and criminal codes. Law in Europe
The law of Europe has a diverse history. Roman law underwent major codification in the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by medieval legal scholars. In Medieval England, judges retained greater power than their continental counterparts and began to develop a body of precedent. Originally civil law was one common legal system in much of Europe, but with the rise of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes, of which the French Napoleonic Code and the German and Swiss codes were the most influential. Around this time civil law incorporated many ideas associated with the Enlightenment. The European Union's Law is based on a codified set of laws, laid down in the Treaties. Law in the EU is however mixed with precedent in case law of the European Court of Justice. In accordance with its history, the interpretation of European law relies less on policy considerations than U.S. law. Common law
Ghana follows the English common-law[129] tradition which was inherited from the British during her colonisation. Consequently, the laws of Ghana are, for the most part, a modified version of imported law that is continuously adapting to changing socio-economic and political realities of the country.[130] The Bond of 184[131] 4 was the first most important event in the history of Ghana (then Gold Coast) that marked the critical period when the people ceded their independence to the British[132] and gave the British judicial authority. Later, the Supreme Court Ordinance of 1876 “formally” introduced British law, be it the common law or statutory law, in the Gold Coast.[133] Section 14[134] of the Ordinance formalised the application of the common-law tradition in the country. Law of Germany
German law has been subject to many influences over the centuries. Until Medieval times the Early Germanic Law, derived from the Salic Law of the Salian Franks and other tribes, was common. With the arrival of the Renaissance, Roman law again began to play a strong role, and later on legal scholars known as the Pandectists revived the formalities of Roman law as set by Justinian in the Corpus iuris civilis. It became common law "(Gemeines Recht)" in large parts of the German-speaking world and prevailed far into the 19th century. As the Holy Roman Empire was composed of countless minor territorial entities, the laws varied very much, according to local traditions and religions. These laws were codified in about local 3000 Weistümer (also called Holtinge or Dingrodel), collections of rural laws.
Only in relation to the Imperial superior Court of Justice, the Reichskammergericht, there existed codes of procedure. In addition to these the Corpus Iuris Canonici, the source of the better organized ecclesiastical judicature and the old Corpus Iuris Civilis. Both bodies of law were central part of the education of jurists and therefore generally known among them. Common land
Common land, an English development, was used in many former British colonies, for example in Ireland and the United States. The North American colonies adopted the English laws in establishing their own commons. Famous examples include the Boston Common in Massachusetts and the New Haven Green in New Haven, Connecticut, some of the oldest commons in the United States. Law
Equity is a body of rules that developed in England separately from the "common law". The common law was administered by judges and barristers. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge-made law if he thought it equitable to do so. This meant equity came to operate more through principles than rigid rules. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. Trustees owe duties to their beneficiaries to take good care of the entrusted property. In the early case of "Keech v Sandford" [1722] a child had inherited the lease on a market in Romford, London. Mr Sandford was entrusted to look after this property until the child matured. But before then, the lease expired. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Mr Sandford took it. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest. The Lord Chancellor, Lord King, agreed and ordered Mr Sandford should disgorge his profits. He wrote, Common law
In addition, there are several historical (but now archaic) uses of the term that, while no longer current, provide background context that assists in understanding the meaning of "common law" today. Common purpose
The common purpose doctrine was established in England and Wales, and later adopted in other common-law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, the Solomon Islands, Texas, Massachusetts, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia. Rule of law in the United Kingdom
The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era. Civil law (legal system)
Louisiana private law is primarily a Napoleonic system. Louisiana is the only U.S. state partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law. In Louisiana, private law was codified into the Louisiana Civil Code. Current Louisiana law has converged considerably with American law, especially in its public law, judicial system, and adoption of the Uniform Commercial Code (except for Article 2) and certain legal devices of American common law. In fact, any innovation, whether private or public, has been decidedly common law in origin. Quebec law, whose private law is also of French civil origin, has developed along the same lines, adapting in the same way as Louisiana to the public law and judicial system of Canadian common law. By contrast, Quebec private law has innovated mainly from civil sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example community property. The legal system of Puerto Rico exhibits similarities to that of Louisiana: a civil code whose interpretations rely on both the civil and common law systems. Because Puerto Rico's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and in many cases, obsolete nature. History of citizenship
Specialists in law found ways to adapt the fixed laws, and to have the common law or jus gentium, work in harmony with natural law or ius naturale, which are rules common to all things. Property was protected by law, and served as a protection of individuals against the power of the state. In addition, unlike the Greek model where laws were mostly made in the assembly, Roman law was often determined in other places than official government bodies. Rules could originate through court rulings, by looking to past court rulings, by sovereign decrees, and the effect was that the assembly's power became increasingly marginalized. Law of the land
Littleton Powys, a judge of the King's Bench, wrote in 1704 with reference to Magna Carta: "lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law..." In 1975, political scientist Keith Jurow asserted that the term "law of the land", as understood by Lord Coke, includes "only" the common law, but that assertion by Jurow was called "manifestly wrong" in a 1990 article by Brigham Young Law School professor Robert Riggs.