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What is Common Law?
Common Law
English legal practices prior to 1,000 A.D. were influenced by both Roman legal principles and the laws of invading Germanic tribes, known as Anglo-Saxons, who conquered England around the year 400 A.D. When William the Conqueror invaded England in 1066, he declared Saxon law absolute, and announced that he was "the guardian of the laws of Edward," his English predecessor. William, however, in seeking to add uniformity to the law lent impetus to the development of common law by ordering that judicial decisions be recorded and disseminated. Under William’s decrees, significant decisions were distributed to judges throughout the country, leading to the development and application of common principles of jurisprudence. Enumeration of the various kinds of offenses for which punishment could be meted out led to acknowledgment of "common law crimes" throughout England. Eventually, a common law arose out of prevailing customs, rules, and social practices that found support in an ever evolving body of judicial decisions. Common law was the result of precedent and tradition, and its authority rested primarily upon usage and custom rather than upon any official decree or statutory enactment. As Clarence Ray Jeffery observes, "It was during the reign of Henry II (1154-1189) that the old tribal-feudal system of law disappeared and a new system of common law emerged in England."[1] By the year 1200 common law was firmly entrenched in England.
Because it depended so heavily upon judicial interpretation, common law has often been referred to as "judge-made" law. As Howard Abadinsky observed, "Common law involved the transformation of community rules into a national legal system. The controlling element (was) precedent."[2]
Common law crimes and the common law legal tradition were transferred to the English colonies in North America, and today form the basis of much statutory and case law in this country. The influence of common law on contemporary criminal law is so great that it has often been called the major source of modern criminal law. The American frontier provided an especially fertile ground for the acceptance of common law principles. The scarcity of churches and infrequent visits by traveling ministers prompted many territories to recognize common-law marriages and to recognize that a meeting of minds constituted a valid contract in most areas of human endeavor.
The strength of the common law tradition in early America was highlighted in 1811, when the famous English prison reformer and jurist Jeremy Bentham wrote a letter to President James Madison in which he offered to codify the law of the United States in its entirety. Bentham told Madison that the case-by-case approach of the common law, based solely on precedent was too "fragmented, flexible, and uncertain" to support the continued economic and social development of the country. Madison, however, rejected the offer and directed John Quincy Adams to reply to Bentham, telling him "[either] I greatly overrate or [Bentham] greatly underrates the task...not only of digesting our Statutes into a concise and clear system, but [of reducing] our unwritten to a text law." A short time later Madison also rejected federal use of the written legal code developed by the American Benthamite Edward Livingston.[3]
By the late 1800s, however, common law principles were giving way across America to written civil and penal codes. The Married Women’s Property Act of 1875, for example, which provided a model for state legislatures of the period, gave married women control over wages earned independently of husbands. The Act effectively dissolved the older common-law doctrine of unity of husband and wife, a principle that had given husbands control over their wives’ wages and property.
About the same time the 19th-century jurist David Dudley Field drafted what came to be known as the "Field Code" -- a set of proposed standardized criminal and civil procedures and uniform criminal statutes that were adopted by the state of New York, and served as a model for other states seeking to codify their laws.
Although modern American substantive and procedural criminal law is largely codified, some states still explicitly acknowledge the common law roots of contemporary penal legislation. The Florida Criminal Code, for example, provides that "The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject."[4] With regard to "punishment of common law offenses", the Florida code says, "When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months."[5] The Arizona penal code contains a similar provision, which reads, "The common law only so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people thereof, and not repugnant to or inconsistent with the Constitution of the United States or the constitution or laws of this state, or established customs of the people of this state, is adopted and shall be the rule of decision in all courts of this state."
Occasionally individuals are arrested and tried under common law when appropriate statutory provisions are not in place. In 1996, for example, euthanasia advocate Dr. Jack Kevorkian was arrested and tried in Michigan on charges of violating the state’s common law against suicide. After Kevorkian was acquitted, jury foreman Dean Gauthier, told reporters, "We felt there was a lack of evidence regarding the interpretation of the common law."[6]
While Florida and a few other states have passed legislation officially institutionalizing common law principles, most states today – even those which have not done so -- remain common law states. Common law states are jurisdictions in which the principles and precedent of common law continue to hold sway, although they have been greatly augmented with many statutory provisions. In contrast, a handful of states, called code jurisdictions, have enacted legislation which says something to the effect that "no conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State."[7] Even in most code jurisdictions, however, the principles and strictures of common law are generally reflected in statutes. Similarly, code jurisdictions continue to accept defenses which were traditionally available at common law.
Although common law crimes which have not been codified may be difficult to successfully prosecute today, the American legal system still bears many important characteristics of English common law. Among them are: 1.) application of the common law principle of stare decisis; 2.) guarantees of "due process of law;" 3.) recognition of "the rule of law," and; 4.) the use of juries in important cases in most jurisdictions. Given the continuing significance of each of these principles in the legal system of the United States, our nation remains, in many significant ways, a common-law country.
1. Jeffery, "The Development of Crime in Early English Society."
2. Howard Abadinsky, Law and Justice (Chicago: Nelson-Hall, 1988), p. 6.
3. See William D. Bader, 20 Vermont L. Rev. 5,7 1995.
4. Florida Criminal Code, Chapter 775, Section 1.
5. Florida Criminal Code, Chapter 775, Section 2.
6. Todd Nissen, "Suicide Advocate Kevorkian Acquitted
for Third Time," Reuter on line, May 14, 1996.
7. Model Penal Code, Section 1.05(1).

Source: Adapted from Frank Schmalleger, Criminal Law Today (Upper Saddle River, NJ: Prentice Hall, 1999), pp. 20-22.