09 Jun

common law

Black’s Law 8th Edition: common law,n.[fr. Law French commen ley “common law”] 1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law>.
Cf. STATUTORY LAW. [Cases: Common Law 1. C.J.S. Common Law §§ 1–4, 21.] “Historically, [the common law] is made quite differently from the Continental code. The code precedes judg-ments; the common law follows them. The code articulates in chapters, sections, and paragraphs the rules in accordance with which judgments are given. The common law on the other hand is inarticulate until it is expressed in a judgment. Where the code governs, it is the judge’s duty to ascertain the law from the words which the code uses. Where the common law governs, the judge, in what is now the forgotten past, decided the case in accordance with morality and custom and later judges followed his decision. They did not do so by construing the words of his judgment. They looked for the reason which had made him decide the case the way he did, the ratio decidendi as it came to be called. Thus it was the principle of the case, not the words, which went into the common law. So historically the common law is much less fettering than a code.” Patrick Devlin, The Judge 177 (1979).

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