Talk:Common law/Archive 5

Downgraded an undiscussed Good Article assessment
I notice that an IP address had added a Good Article assessment to the WikiProject Law tag. As I have not seen any indication that this article has ever undergone a Good Article nomination in the archived talkpages, I will assume it was likely vandalism. I have assessed the article as B, consistent with the other tags. Safiel (talk) 23:39, 24 March 2010 (UTC)
 * jyrdku6yfliyf76rly —Preceding unsigned comment added by 99.49.245.21 (talk) 22:27, 11 October 2010 (UTC)

First ethnic & minority rights in England
When was the first ethnic & minority rights (culture education political language rights) declared in England? Don't confuse it with immigration and citizenship laws/acts! Can you write me? Many Thanks! mail: stears333@gmail.com —Preceding unsigned comment added by 84.2.100.11 (talk) 07:08, 19 October 2010 (UTC)

Common Law versus Case Law
Common law should not be conflated with case law. They are actually two separate concepts. By popular usage any law that was not created by a statute or regulation is often called common law.

"COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people." Bouvier's Law Dictionary, 1856 Edition.

Case law, or judge-made law, while valuable is a means to establish certainty by setting precedent and describing the way the judge arrived at a decision. CommonLaw1215 (talk) 17:29, 24 December 2010 (UTC)
 * You have no idea what common law or case law is. Go to law school.  --Coolcaesar (talk) 17:33, 24 December 2010 (UTC)
 * Be polite, Assume good faith, Avoid personal attacks, Be welcoming. You've certainly hit all the guideline points. Since law schools in the United States teach case law, how would one learn about common law in law school? CommonLaw1215 (talk) 18:06, 24 December 2010 (UTC)
 * Dear user "CommonLaw1215": This is from Black's Law Dictionary:
 * Case law. "The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. See Common law." --- Black's Law Dictionary, p. 196 (5th ed. 1979) (bolding added).
 * Common law. "[ . . . ] the common law comprises the body of those principles and rules of action [ . . . ] which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts [ . . . ] and, in this sense, particularly the ancient unwritten law of England." --- Black's Law Dictionary, p. 250-251 (5th ed. 1979) (bolding added).
 * "'Common law' consists of those principles [ . . . ] which do not rest for their authority upon any express and positive declaration of the will of the legislature." --- Black's Law Dictionary, p. 251 (5th ed. 1979).
 * To "CommonLaw1215": There are some nuances, but the terms "case law" and "common law" are often roughly interchangeable as technical legal terms. You seem to be implying that you believe that "since law schools in the United States teach case law", a student in those law schools would not learn about "common law". With all due respect, that would be a nonsensical idea. Famspear (talk) 23:55, 24 December 2010 (UTC)
 * Famspear, I commend your earnest good faith in trying to explain these basic concepts, but the question "how would one learn about common law in law school?" is so silly that it's obvious trolling. Best to point that out and then ignore the troll.  --Coolcaesar (talk) 17:31, 25 December 2010 (UTC)


 * We had a discussion of the Bouvier's definition a couple years ago, buried in the Talk archive somewhere.  It's got three problems.  (a) It's too imprecise to mean anything, (b) It's wrong (both underinclusive and overinclusive), and (c) it doesn't conform to any usage today (I can't opine whether it was correct or not in 1853, but it has no relationship to any present-day reality).  Boundlessly (talk) 23:14, 6 January 2011 (UTC)


 * And just to pile on -- I agree with Famspear and Coolcaesar that the opening remarks of CommonLaw1215 are -- oh lets not use that word no matter how applicable it might be, let's say -- uninformed and uninformative.   I share their exasperation at the morons that think that somehow God gave them a unique revelation of truth, yet that revelation has no relationship to reality of how parties order their relations under contract, judges decide cases, or legislatures make statutes.  If a person's conception of "common law" doesn't conform to those three realities, then that conception is just -- uninformed and uninformative.


 * The remarks to which Famspear and Coolcaesar are reacting contain their own rebuttal presumption of good faith. Junk from crackpots need not be welcomed.  Boundlessly (talk) 02:46, 27 January 2011 (UTC)

Origin of Common Law
I read the discussion under Medieval Islamic Law, but my comments don't really relate to that.

When looking for the origin of law, one can only go back as far as recorded history, possibly the Code of Hamurabi.

The very earliest law that we know of was decreed by kings like Hamurabi. While kings could decree whatever they wanted to, still king-made law generally accepted some principles of right and wrong.

Since Mosaic Law (law of Moses) was the earliest, as far as I can tell, known written law that didn't come from a king, one might consider Mosaic Law the genus of the common law.CommonLaw1215 (talk) 17:54, 24 December 2010 (UTC)
 * Uninformed and uninformative. No further comment.  Boundlessly (talk) 02:47, 27 January 2011 (UTC)

Section numbering 1-4
Is it necessary to number first section's subsections like this? I think they could be removed, the table of contents already assigns numbered decimal bullets automatically as it is, and it complicates and lengthens using section links unneccessarily. DB (talk) 19:17, 10 April 2011 (UTC)

Yes. The term "common law" has several definitions. Throughout the body of the article, when the difference makes a difference, the article specifies which of the several definitions is being invoked. 02:23, 24 April 2011 (UTC) — Preceding unsigned comment added by Boundlessly (talk • contribs)

Canada
There are two statements in the article about Canada that I'm pretty sure are false, or at least misleading.


 * Criminal law, which is uniform throughout Canada, is based on the common law as interpreted by the Supreme Court of Canada.

It should at least be noted that criminal law was codified as the Criminal Code, and there are no common law crimes except contempt of court.


 * The mid-tier Federal Court of Appeal is a single court that sits and hears cases in multiple cities, and thus mid-tier decisions have precedential value throughout Canada (that is, unlike the United States, Canada is not divided into appellate circuits).

The Federal Courts only have jurisdiction over certain areas of law. Most cases would progress from a provincial trial court, to a provincial superior court, to the provincial court of appeal, and finally to the Supreme Court of Canada. --yycguy81 (Talk) 15:24, 27 May 2011 (UTC)


 * I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law.  This is a tension which runs throughout this article, in my opinion.  In any event, I've modified this section of the article accordingly. Also, I don't think that the comments on Federal Court jurisdiction were all that helpful, so I've just added a link to the Canadian court system article.Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)

Canadian criminal law
The Canada section of the article has this sentence: "Criminal law, which is uniform throughout Canada, is based on the common law in all provinces." This is internally-contradictory. Almost by definition, you can't have both "uniform throughout Canada" and "based on common law in all provinces." Does this mean that there is a Canada-wide statute, and the federal and provincial courts have interpretive authority? (Analogous to federal criminal statutes in the U.S.) Or something else? Boundlessly (talk) 18:48, 28 August 2010 (UTC)


 * I agree with these comments. Part of the reason for the ambiguity is that "common law" can mean the substantive principles of law which evolved in the English system, and it can mean the case-law system of defining the law. This is a tension which runs throughout this article, in my opinion.  In any event, I've modified this section of the article accordingly. Mr Serjeant Buzfuz (talk) 14:40, 2 July 2011 (UTC)


 * The issue was resolved after August 2010, by conversations with Canadian lawyers. If I garbled it, please fix it, but the August 2010 comment is no longer relevant.Boundlessly (talk) 23:56, 9 July 2011 (UTC)


 * Powers of Canadian federal parliament is not highly relevant to common law.  I moved that to footnote.Boundlessly (talk) 00:00, 10 July 2011 (UTC)

Reception of English Law
I've added a section detailing the reception of English law in Canada. I've also deleted the reference to Canada in the comments about reception statutes as a step to decolonization, as that is not accurate. In those Canadian jurisdictions that have reception statutes, they were enacted when colonies first came under British or Canadian control, as I have summarised. Reception statutes were not a step to decolonization in Canada; rather they were part of the initial steps of setting up the legal system in the new colonies.

I also added some headings to the sections on reception in the US, Hong Kong and other British colonies.

I would be interested to see some cites to the section stating that reception statutes were a step towards decolonization in other British colonies, as I'm not sure it's as neat and tidy as that passage suggests.Mr Serjeant Buzfuz (talk) 12:16, 22 July 2011 (UTC)

Medieval Islamic law
Having watched this "medieval Islamic law" section evolve for about two years, I am now reasonably convinced (though without reading the underlying articles, e.g. Makdisi, Gaudiosi, etc.) that this section on Islamic influences doesn't belong here.

The argument made in this section seems to be a classic instance of post hoc ergo propter hoc fallacy, "after, therefore because of," speculative at best, and not very instructive.

Looking at the dates, knowing the little I know of Roman law, and so on, it seems that the common law features attributed to Islamic law were either borrowed from Roman law (which is nearly a millenium older than Islamic), or developed independently by parallel evolution - certain legal constructs are such good ideas, and so necessary, that they get invented and reinvented independently in multiple legal cultures, without any derivation. For example, I have no doubt whatsoever that Chinese law has had contracts for millenia, entirely independent of either Roman or Islamic traditions, and little doubt that the Chinese had a professional class of lawyers with training academies, and constructs parallel to trusts (at the very least, parents must have acted as trustees since Neanderthal times). The Hebrew Pentateuch clearly lays out legal reasoning by precedent and analogy, again hundreds of years before there was an Islam to have an Islamic law. The point is that good ideas recur, and mere similarity, without more, is not evidence of derivation (I'm an IP lawyer -- I deal with this all the time)!

I vote to remove this section from this article (the proponents would be encouraged to move the content to a new independent article, with a link from here). This section and its support seem so speculative that it dilutes the rest of the article. Boundlessly (talk) 15:05, 25 November 2010 (UTC)


 * I concur that the section is nonsense and should be removed. --Coolcaesar (talk) 20:01, 25 November 2010 (UTC)
 * I also think it should removed. The contributor of the section was the subject of this RfC/U, which I would like to draw everyone's attention to. It was additions like these that led to the RfC/U and subsequent cleanup. Athenean (talk) 22:50, 29 November 2010 (UTC)


 * See WP:Jagged 85 cleanup for an overview. I have no particular knowledge within this field, but text like "...whether English common law was inspired by medieval Islamic law" is exactly the type of POV cherry picking demonstrated for this user, and my feeling is that the section should be removed. It is clear that there has been some speculation on possible Islamic origins of common law, but in the absence of some well accepted and reliable sources, it is reasonable to assume that there is not sufficient evidence of a causal connection to warrant the current section. The "good ideas recur" point by Boundlessly above is precisely correct: it would be amazing if no similarity between two legal systems could be found. Johnuniq (talk) 02:42, 30 November 2010 (UTC)


 * I found the Makdisi article. The reasoning is very naive.  The initial thesis is "the legal institutions of the common law fit within a structural and functional pattern that is unique among western legal systems and certainly different from that of the civil law. The coherence of this pattern strongly suggests the dominating influence of a single preexisting legal tradition rather than a patchwork of influences from multiple legal systems overlaid on a Roman fabric. The only problem is that no one preexisting legal tradition has yet been found to fit the picture. This Article looks beyond the borders of Europe and proposes that the origins of the common law may be found in Islamic Law. "


 * Oh pifflesnort. This is the same argument creationists use -- "The structure is so organized, there must be a God."  Baloney, if the common law structure didn't work, it would have gone extinct long ago by natural selection.  If common law had been imported wholesale from Islamic Law, the origins would not be "shrouded in mystery" as Makdisi states, the footprints would be much clearer.  As every first year law student will tell you, there is no "structural and functional pattern," the common law is a collection of ideas, with amendments and subsequent repairs as defects are identified, that works well because of evolutionary processes, not part of a preconceived "pattern."


 * It's gone. Boundlessly (talk) 12:46, 30 November 2010 (UTC)
 * Thanks, but we have a problem. The material was removed last May, and was re-added in this edit by 99.246.101.166 at 22:33, 21 November 2010. In other words, this article will need indefinite monitoring to avoid efforts by enthusiasts. I noticed this because I went to update Cleanup2 to say this article had been cleaned, when I saw that another editor had already checked the article as being clean last June. Johnuniq (talk) 04:05, 1 December 2010 (UTC)

Is it just me that see's this or are the 'basic fundamentals' being blurred here? Said fundamentals being: The enormous & distinctive differnces existing between that which is called 'legal' and that of what is Our Law? — Preceding unsigned comment added by HayleyMarrie13 (talk • contribs) 04:48, 21 December 2011 (UTC)

Common law as a foundation for commercial economies
In my humble opinion The "Common law as a foundation for commercial economies" doesn't adhere to the Neutral Point of View Policy of Wikipedia. Carel.jonkhout (talk) 04:31, 4 August 2010 (UTC)
 * Concur. Whomever wrote that clearly hasn't litigated New York contract law, which is an appalling mess compared to California, Washington, Texas or any other large state.--Coolcaesar (talk) 04:15, 6 August 2010 (UTC)


 * Agree - particularly when London, England is just as often chosen in, you know, the rest of the world. Particularly relating to maritime law. (143.167.143.161 (talk) 11:56, 6 August 2010 (UTC))


 * I'm a Massachusetts and New York lawyer, and do lots of international contracts. The only time I've *ever* seen a contract with a choice of law clause that picks a jurisdiction with which neither party has strong contacts, the choice of law is New York.  But that -- oh, that situation I've seen/negotiated dozens of times.  I worked on a Japan/France deal (nobody even in the U.S.!) that picked New York.  Lots of U.S. deals with neither party in New York pick New York.  I've never seen a California or U.K. choice of law for a contract unless at least one of the parties has its principal place of business (either for the company as a whole or for the subject matter of the contract) in California or U.K.


 * I fully concur that other fora are preferred for many types of litigation, especially for admiralty and defamation. But litigation is after the fact, the focus of this section is contracts, that is, commercial choices made before the fact.  For defamation (which is not generally commercial law and thus not relevant here), London is the choice for pure forum shopping for substantive law (no pesky NY Times v Sullivan problem), not whether it's a deep predictable common law jurisdiction.  Forum choice for non-commercial tort litigation doesn't inform about choice of law clauses in international commercial contracts.  For admiralty, London is oft-chosen -- but for exactly the reason noted -- admiralty is commercial law, and London is chosen because of the depth of London common law.


 * The article accurately states the reality that I deal with, and that dozens of other lawyers see, including some London and Paris folks that I know.  Are the statements in the article about choice of law clauses in contracts (not litigations) inaccurate?   Boundlessly (talk) 20:40, 27 August 2010 (UTC)


 * Your experience is not normative. The fact you have are a US based lawyer means you will have little visibility of what goes on in the rest of the world.  If you've never seen London as choice of jurisdiction for contract, that speaks of your inexperience and little else.  The reality you deal with is not necessarily objective reality, it is just yours.  London is the world's pre-eminent centre for international litigation. Masterrows (talk) 01:00, 20 December 2011 (UTC)


 * Masterrows: Thanks for making the point. The reason London is oft-chosen for commercial litigation is because of its depth of common law in most areas of international law.  However, the effect of New York is even stronger in pure commercial contracts.  Commercial parties choose jurisdictions with rich bodies of commercial law for commercial contracts (that is, agreements before the dispute breaks out), and for commercial litigation.  But most often, a litigation plaintiff chooses forum for a reason unrelated to predictability -- often, precisely because the forum is a departure from the norm.  Think two of the cases you studied in first year law school, Erie v Tompkins (of four possible bodies of law, three had substantive rules that would have resulted in Tompkins losing, so he chose Pennsylvania federal corut), Keeton v. Hustler Magazine, Inc. (in the other 49 states, the statute of limiations on defamation had run, only New Hampshire's statute of limiations was long enough to permit the case to be brought) -- both were forum shopping cases.


 * But for commercial contracts, most of the forum-shopping concerns are much attenuated. Commercial contracts choose a body of law that is fair and predictable, because both parties want a leval playing field for all issues, not just the precise issues in the one specific case.  That's why this section focuses on prospective contracts, not retrospective litigation.


 * Take a look at the empirical data in the Eisenberg & Miller paper.


 * "New York’s dominance is striking. It is the choice of law in approximately 46 percent of contracts. New York’s share rises to over 50 percent if one excludes the merger contracts in which Delaware dominates by being the choice of law in over one-third of the agreements. With respect to all contract types combined, Delaware is a distant second with about 15 percent. After Delaware, no state accounts for even ten percent of the choices of law and only California even exceeds five percent."


 * Boundlessly (talk) 13:53, 29 January 2012 (UTC)


 * I added a POV-section tag to the section (was going to add a POV-check|section, but found out there's already a discussion here). What I most object to is that it reeks of "common law is great, other types are bad, for economics". Jalwikip (talk) 08:30, 23 January 2012 (UTC)


 * Jalwikip: strawman argments aren't helpful. Empirical data is.  Take a look at the Eisenberg & Miller paper.Boundlessly (talk) 13:53, 29 January 2012 (UTC)

An admiralty case
In the last quarter of XXth century, during a british navy exercise in the high seas of the Atlantic ocean, a Vertical Take Off and Landing Harrier aircraft lost contact with its fleet; approaching the end of its fuel reserves, the pilot spotted an spanish flagged container merchantship, and, being a top quality professional, he managed to make a Vertical Landing on the ship's deck, so saving the high cost airplane, and his own life. The Sea laws supposedly give the ship who rescues in high seas another ship, a right to a part of the price of the rescued ship as a compensation for saving both property and lives. The british government refused to acknowledge the "landing" of the aircratf on the ship as a "sea rescue", and when the operator of the ship presented the case in the UK based admiralty court, they sentenced that this was not a sea rescue, and refused the ship owner and the captain the monetary compensation they claimed for saving both the pilot and the airplane. This sounds like a prevarication, and the only optimist teaching from this event would be the comment from the captain in introducing the story, when he called the ship owner to let him know what had happened: "You'll wet your pants laughing...".


 * The ship owner almost certainly lost the case because the ship didn't actually do anything other than be there at the time. In order to claim, the ship would have needed to have actively participated in some form of 'rescue' which, from what you state above, it did not do.


 * Being entitled to an award entails a person to have done something that he/she would not have done anyway, i.e., he would have needed to have gone out of his/her way to help.


 * ... just being there doesn't count. You need to make some actual effort to help. I suspect that the ship owner may have won if the ship had changed course in order to assist the aircraft, but from what you include in your description I would guess that this was not so. Presumably when the aircraft was subsequently re-fuelled it was then flown off, so it may well have been considered that it was never 'in distress' as the fuel on board was sufficient to allow it to alight on the sighted ship without danger to the pilot or aircraft. And for the ship, presumably there was little or no loss involved. Think of it this way, if you are flying an aeroplane and you notice that you are running low on fuel, and you just happen to be flying over an airport, then what do you do - you land. And that's what the Harrier pilot apparently did. Similarly, if you are passing a burning building and someone jumps from a high window and lands on you, and you thereby break their fall, it doesn't mean that you deliberately saved their life. You may have actually done so by breaking their fall, but you didn't actually do anything. You were just there.


 * The situation would have been similar if it had been a helicopter low on fuel, in which case, I would surmise that that would have been dis-allowed by the court as well, as if it had been low on fuel the landing-on would be deemed a normal, prudent thing to do. Again, if the ship had done nothing but steam a steady course then no loss in time or money to the ship owner would have been involved and so the matter of a 'rescue' would never have arisen.


 * ... However I would have thought that some sort of un-official 'thank you' might have been sent/given to the ship's captain and crew, simply for 'being there' at the right time. — Preceding unsigned comment added by 80.7.147.13 (talk) 15:30, 21 May 2012 (UTC)

Abolition of pleading requirements
The paragraph discussing abolition of the common law pleading requirements is incredibly misleading. Nowhere is it stated in which jurisdictions this occurred. But by inclusion of the phrase, "'a short and plain statement' of facts" (hereafter "notice pleading) that constitute an alleged wrong, it is discernible that it is the Federal Rules of Civil Procedure under discussion.

For the reasons discussed below and because inclusion is tangential to the article's topic, I recommend that the paragraph be removed.

While most if not all state jurisdictions have adopted the Federal Rules to some extent, many states declined to follow the relevant change in the Federal Rules and still require more detailed "ultimate fact" pleadings; e.g., Oregon.

Moreover, even under the Fed.R.Civ.P., Rule 9 establishes specific exceptions to the "short and plain statement" of facts, requiring particularity in pleading certain matters and times and dates.

And as any federal court practitioner well knows, the case law is riddled with claims and defenses where the courts have decided that far more particularity is required than a "short and plain statement" of the facts. For example, in civil rights cases the plaintiff must plead facts that negate the affirmative defense of qualified immunity.

To top it off, it is generally acknowledged that the Supreme Court in effect abolished notice pleading in Bell Atlantic Corp. v. Twombly, expressly overruling the far more lax pleading requirements set in the 1957 case, Conley v. Gibson.

I see no way to salvage the paragraph without writing a near-book length article. Marbux (talk) 06:38, 20 May 2012 (UTC)


 * Twombly was more a rule 9 case than a rule 8 case, and it (at least, as discussed in my law school class last semester), it didn't overrule Conley. However, the one-sentence paragraph is much too simplistic.  — Arthur Rubin  (talk) 15:55, 21 May 2012 (UTC)
 * Concur with both of you re removal. Looks like it was written by a pro per.  --Coolcaesar (talk) 04:38, 22 May 2012 (UTC)


 * Coolcaesar is correct, the origin of this section was a crackpot pro se, Oatmealo if I recall. I edited it down to get it to say something meaningful (even a stopped clock is right twice a day, and I trusted Oatmealo for the basics of pre-1939 common law pleading, so I didn't delete his contribution entirely).  However, these comments suggest that maybe we need to recognize another step in the history.  Is this the right framework?  There are three historical periods: the nineteenth-century-and-earlier period when pleading was crazy technical. the 1938 to 2008 period when the emphasis was on "short" but not necessarily "Plain" or "notice," and the post-Twombly period with the pendulum swinging back toward "notice."


 * Based on my limited knowledge of the relevant history, maybe the right approach is to not delete the section, but to clarify that the pendulum swings, that post-Twombly the complaint has to plead underlying facts, etc.  76.19.143.148 (talk) 06:09, 29 June 2012 (UTC)

Saxon Origins of English Common Law
Well, since someone didn't like my edit, and for some reason thinks that my sources don't back it up, here's the sentence that I added:
 * Saxon (pagan) common law was introduced into England about the middle of the fifth century, hundreds of years prior to the introduction of Christianity.

The current History section makes it seem as if Alfred "invented" common law, and furthers the erroneous conclusion that English common law has always been Christian. In fact, I sourced the sentence to two different writings of Thomas Jefferson, separated by more than a decade, where he specifically discussed the pagan origins of English common law as originating with the invading Saxons, and the idea "...that Christianity neither is, nor ever was a part of the common law."[http://www.stephenjaygould.org/ctrl/jefferson_cooper.html] Here are the two excerpts, with links to the full texts:
 * (1) "Authorities for what is common law may therefore be as well cited, as for any part of the Lex Scripta, and there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present; where we detect them endeavoring to make law where they found none, and to submit us at one stroke to a whole system, no particle of which has its foundation in the common law. For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta. This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it."
 * (2) "I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed."

So yes, it certainly "makes sense," and yes, my sources do indeed back up the sentence. -- Bryon Morrigan --  Talk  22:17, 11 July 2012 (UTC)
 * The sentence itself was a bit poorly-worded, but the idea, that English common law originated in the middle of the 5th century CE with the pagan Saxons, is certainly something that should be on this page, as currently it promotes the idea that it has always been rooted in Christianity, which is obviously absurd. -- Bryon Morrigan --   Talk  22:29, 11 July 2012 (UTC)

My concern is that whatever law existed in Fifth Century Anglia wasn't "common law" as we understand the term today. With the explanation here, I see one part of your point (that origins of common law are pre-Norman-conquest), but not others (what implication is there that common law is tied to Christianity?). Maybe there's a sentence that makes your point but doesn't create the problem that troubles me? I realized that Mr. Jefferson's statements do illuminate a useful point, so I added them in [| Connotation 4] at the top of the article. Does that get where you want to go? Boundlessly (talk) 17:38, 17 July 2012 (UTC)
 * I don't know that that is what Jefferson (the source) was really saying (...especially since the Norman Conquest was a few centuries later). The implication now is that English "Common Law" originated with Alfred, and Alfred used "Christian principles" and the "Old Testament" in his Doom Book.  This is often used by Christians to "prove" that Common Law is inherently Christian.  However, historians know that the system of Common Law derives from the Saxons, and their tribal governments.  I figured that it would be best to hear it from Jefferson's "mouth," as it were, particularly since he felt so strongly about the subject, and the need for Americans to understand that our Anglo-American system of laws originates with Pagans, rather than Christians.  -- Bryon Morrigan --   Talk  20:18, 18 July 2012 (UTC)

Formatting edits
Born from an effort at an abundance of discussion, I am proposing the following changes, which have have been repeatedly reverted by one editor: It strikes me as a bit much to need to list these points, however the reporting mechanism for edit warring indicates that such discussion be raised prior to reporting, as best I can tell. ENeville (talk) 04:18, 17 October 2012 (UTC)
 * That bold titles not be linked, per WP:CONTEXTLINK
 * That redundant links, such as those to precedent, be removed, per WP:OVERLINK
 * That links to a section heading from the top of those same sections be removed because they are purposeless
 * That the clause in the first sentence be separated by commas rather than parentheses because parentheses are both grammatically unnecessary and contrary to the typical article format

I have a hearing in D.C. to prep for. Can't deal with this for several days. Boundlessly (talk) 09:43, 18 October 2012 (UTC)


 * I have implemented the edits pending conclusion otherwise. ENeville (talk) 16:33, 18 October 2012 (UTC)


 * I'm back from my hearing (it went well, by the way). I see you jumped the gun without waiting for -- consensus.  Apparently Manual of Style rules of thumb that don't even apply in this context, and that carry a warning "these guidelines have exceptions and require judgment," are now black-and-white rules, and waiting for consensus or considered judgment is not.  You also demonstrate great skill in picking-and-choosing among rules of thumb, applying one while ignoring another that is stated only a sentence or two away.


 * The edit history will show you that I've been keeping this page coherent for over five years. I got it up to a "B" level "good article."  I explained to you that the internal links are there as part of the scaffolding that helps me maintain internal consistency.  It's explained above in this Talk page.  If you gave a moment's thought to five years' experience or this Talk page, it doesn't show.  Somehow, to some, "be bold" means ignoring the Talk history and the contrary explanation I gave you, and promised to elaborate, without so much as a counterproposal or contrary showing.


 * Fine. We'll try it your way for a few months.


 * I see the entropy began within 48 hours of your "implementation."


 * Boundlessly (talk) 12:16, 23 October 2012 (UTC)


 * Please note No personal attacks: characterizing another editor as "demonstrat[ing] great skill in picking-and-choosing among rules" or failing to give "a moment's thought" criticizes the editor rather than addressing the edits in question.


 * Please also note Ownership of articles: "All Wikipedia content is edited collaboratively. No one, no matter how skilled, or of how high standing in the community, has the right to act as though he or she is the owner of a particular article.[emphasis original]" and please further note that this was previously pointed out on your Talk page.


 * As to "entropy", please note Wikipedia is a work in progress, which I previously pointed out on your Talk page as well. I would also observe that the two edits to which you apparently refer as "entropy" appear to be constructive, so the basis for your criticism seems unfounded.


 * Re the cyclical section heading links, I scanned above per your direction but the closest material I found in relevance was Section numbering 1-4, which doesn't actually address the point. If you could be more specific it would be helpful.  Perhaps the material you're thinking of is in one of the Talk archives? Please note that as of yet the only "explanation" that I've observed, here or in the edit comments, has been an assertion that the cyclical links "have utility" and are "scaffolding that helps me maintain internal consistency".  The argument against them, as stated previously and in my initial comment above, is that they link back to the same spot and are thus a useless link.  They appear to go somewhere but do not, and instead simply clutter the text.


 * Finally, please note that having other editors contribute is not "my way", but the foundation of Wikipedia. ENeville (talk) 17:06, 23 October 2012 (UTC)


 * Your warnings about personal attacks (as opposed to my statements that say nothing about you, only to ask you to draw inferences from your actions), applies to this edit of yours how? http://en.wikipedia.org/wiki/User_talk:Nabla#Common_law
 * Illegitimi non carborundum. ENeville (talk) 18:40, 14 October 2012 (UTC)
 * And your basis for jumping the gun when I'm tied up without waiting for me to get back is...? If you take the approach of "shoot first, ask questions later," you might not be able to get the answer later.
 * And your justification for elevating one isolated sentence about "overlinking" over all other contrary conditions and advice on WP:OVERLINK is -- what?
 * You want me to leave your edits alone. Well you've got it.  Shall we take bets on how long it takes for things to fall apart without scaffolding?
 * Boundlessly (talk) 17:57, 23 October 2012 (UTC)


 * My use of illegitimi non carborundum was made in support of an editor who had referenced having withdrawn from greater WP involvement because of being "tired of the incredibly aggressive environment", amongst other reasons. The comment was made on their Talk page, in a thread that no one else had participated in, and included the generalized invocation of the adage, without specifying anyone, including yourself.  My  comment to you about editing here was about reversion and did not include any such adage, and I put it on your Talk page (and you deleted it).


 * My basis for implementing the edits, apparently referred to as "jumping the gun", was that:


 * 1. The edits represented the input of two editors making logical and explained edits, including per WP:MOS, in contrast with an editor who had shown a proclivity for reversion, as well as a broader lack of respect for the contribution of other editors as evidenced by edit comments presumptuously referencing status as "older wiser previous editor" and by even the deletion of other editors' comments from article Talk pages.  I thought it forbearing not to have implemented the edits at the time I commented on them.


 * 2. I deemed it unwise to rely on the response, at an indefinite future time, of an editor who had shown that they could not be relied upon not just to respond to cited guidelines, but even to respect multiple pillars of WP, and who had apparently modified guidelines ex post facto in support of their actions. I would also point out that actual support for reversion of these edits has yet to be provided, beyond general references to such support existing somewhere.


 * Finally, if you find that the current (or any former) state of the article is superior to the dynamic state that is inherent in the nature of WP, perhaps you could mirror that state, in a manner similar to what others have done mirroring WP? ENeville (talk) 18:30, 24 October 2012 (UTC)

Over and out
I've been shepherding this page for about five years, and got it up to "Good article B" status. I am now bidding adieu.

As long as this was a collaborative project to collect people's best ideas in and to present them clearly to help non-lawyers understand what this is about, this was fun, and worth the time I put into it. Now that the big effort is to fight off a few Taliban (those who are committed to defacement for religious reasons), it's not fun any more. So I won't. When expertise is denigrated or becomes a liability, well, expertise is all I have to offer, so I have to get out of the game.

For issues that require some expertise, ding Coolcaesar (talk) and Famspear (talk), who understand the subject matter.

Boundlessly (talk) 21:08, 12 November 2012 (UTC)

OR and POV in section "The common law evolves to meet changing social needs and improved understanding"
The section states that "The common law is more malleable than statutory law" and illustrates this by a long example of how it changed. I think this is a clear case of original research. It then tells us how nice and flexible common law is without stating any opposite views. Most countries use a civil system and they might just have their reasons.

I think it would be better to only state that common law can change, and later add a section comparing common and civil law. A.donda (talk) 12:02, 2 October 2013 (UTC)


 * Don't mix up things that are distinct -- "statutory law" and "civil law" are two different things. In a common law system, the common law is more malleable that statute.  The comparison simply makes no sense in a civil law context.  76.19.141.198 (talk) 22:44, 12 April 2014 (UTC)

Malaysia
Shouldn't Malaysia be considered a special case here? For as far as I know, they have a hybrid system of Common Law and Islamic Law. — Preceding unsigned comment added by 195.189.7.170 (talk) 09:30, 6 June 2014 (UTC)

Mistakes on map re: Sharia law
It looks to me like there's several mistakes on the map when it comes to which countries have Sharia law. Bangladesh does not, it's a common law system. Morocco has a dual legal system,

Agreed. Malaysia is another example that has a dual system of Common and Islamic Law. — Preceding unsigned comment added by 195.189.7.170 (talk) 09:34, 6 June 2014 (UTC)

My recent edits
I have created two new sections in the "Contrasts between common law and civil law systems" section: "General principles of law" and "Constant jurisprudence".

General principles of law gets some treatment in the "Decline of Latin maxims, and adding flexibility to stare decisis" section, but that section is mostly concerned with attacking connotation 1(a), that the common law interprets, and decides what the law is in the absence of, statutory and regulatory law, and attacking stare decisis, that once it is decided nothing changes until the statutes legislatively overrule the common law. It then jumps right into "Reliance on old maxims is now deprecated" but ignores the fact that "not-so-old maxims are still very much in use". These not-so-old maxims are, from what I can gather, called General principles of law, as in General principles of European Union law.

Jurisprudence constante just gets outright ignored, presumably because Precedent is another article. But the fact remains that this article covers connotation 2, common law as versus civil law, and the difference between Jurisprudence constante and stare decisis is essential to that understanding. But even the Precedent article does not discuss it (very clearly) from a separation of powers POV. I think the only way to rectify this would be to merge this section with the "Contrasting role of case law in common law, civil law, and mixed systems" section in the Precedent article into a independent article.

The literature goes out of its way to differentiate between General principles of law and customary law, but just how to describe customary law in terms of common law is not immediately clear to me at the moment. I think common law skips the mindgames that civil law scholars play. Civil law scholars say "its always been done this way" and the civil law judges say "" (they don't say a damn thing), whereas common law judges use the lords name in vain or otherwise give a scholarly account using legal maxims or general principles of law but never call it as such... Int21h (talk) 23:42, 20 June 2014 (UTC)


 * I should also note that I have explored these two topics in the Law of Mexico article, using sources, but while it is clear that these are attributes of the Mexican legal system because its a civil law jurisdiction, and I have seen them elsewhere for other jurisdictions, such as these slides from Germany, I don't have sources that are both reliable and that make the relationship explicit. Int21h (talk) 23:49, 20 June 2014 (UTC)

Incredibaly biased.
Well this shouldn't come as a surprise, considering that this is the english wiki but it is getting absurd.

The whole part about common law being more clear than civil law is BS and just plainly wrong. Abortion and drugs are the best example. A vague US analogue law, where the final verdict for a substance is done by a court and until a specific case and court decision exists one cannot say with certainty whether a new substance is illegal or not, is impossible in civil law systems. Every substance (and action, in other aspects of law) is, with 100% certainty legal or illegal. And if it is illegal the minimum and maximum punishments are clearly defined. Everyone can look up the law and inform himself on the legality of his actions and the possible risks. — Preceding unsigned comment added by 141.53.210.36 (talk) 19:17, 20 July 2011 (UTC)


 * The portion of the article you're referring to is specifically addressing the issue of contractual law, where the common law is generally much clearer than civil law because there's such an enormous body of case law in which it's easier to locate closely analogous cases. For example, even though many portions of the UCC are notoriously difficult to understand, one can find decisions in which they were authoritatively interpreted, and in turn, can rely upon those decisions in drafting contracts.  In civil law systems, the lack of stare decisis greatly reduces predictability, which is not good for parties to commercial contracts, who want their lawyers to assure them that a particular clause will or will not be enforceable if the deal goes south and everyone hires lawyers and starts suing each other.  --Coolcaesar (talk) 12:09, 21 July 2011 (UTC)

I'm sorry, but I must agree with the user above. The section is very biased because it sounds like the common law is great and all all non-common law systems have no certainty of law whatsoever. The truth is, it all depends on the country and how far developed its legal system is. It does not depend on the common law/civil law distinction. In fact, in most Western European civil law jurisdiction there is just the same amount of certainty and predicability as in common law jurisdictions, sometimes even more. This is because the statutes are often more precise, whereas common law statutes often refer to vague terms such as "reasonable" etc. and leave the same to the courts. It is true that also legislators in civil law jurisdictions can never foresee every possible legal problem, but in this case civil law systems have the same abundant amount of case law and scholarly writings as common law systems. Although there is no formal doctrine of stare decisis, civil law systems will still usually obey supreme court judgments etc. and therefore come to a relative uniformity of decisionmaking. Furthermore, in spite of stare decisis, common law judges will still be able to distinguish precedents they don't want to apply, or just make a set precedent for what they perceive as a new legal problem. Then there will be a reason for the losing party to cry just as well as in civil law systems. As a supporting argument, you may also refer to the number of appeals and cases that get overturned upon appeal. Although I don't have statistical numbers, I suppose that they are roughly the same in both civil law and common law jurisdictions. That proves that in both legal systems, different courts can have different opinions on the law in a case that comes before them.

PS: Also the chapter on "adversarial vs. inquisitorial system" is very biased. The article purports that judges from jurisdictions with an inquisitorial procedural law (again, it is different in every jurisdiction) are biased and not neutral because they only listen to the magistrate judge and not the parties. Of course, this is false. Judges in inquisitorial systems are neutral and impartial as well. In fact, neutrality of courts is a basic principle in every state that observes the rule of law and human rights.141.70.80.5 (talk) 00:24, 29 October 2014 (UTC)


 * The article reads as if sourced mainly from traditionally one-sided, old-fashioned textbooks addressed to students preparing for legal practice in exclusively common law jurisdictions, written by authors not having in-depth knowledge of comparative jurisprudence, or who have never had to consider practice in Civil Law jurisdictions. From the point of view of modern legal practice (and legal education), it is out of date. This point is usefully summarised in "Research Myths about Common Law & Civil Law Jurisdictions": The reality is that many lawyers in civil law jurisdictions do begin their research in cases and many lawyers in common law jurisdictions begin their research in legislation. Attorneys in both jurisdictions ultimately must consult all sources of law to do thorough research. . See also the comments. Qexigator (talk) 08:34, 29 October 2014 (UTC)

Editor discrimination
I have removed the following violating and discriminatory admonishment from the top of the article: The first three paragraphs of this article are correct. They have been heavily vetted over years by lawyers. Unless you are an American or UK lawyer that practices in court, please do not change this introduction section. This admonishment is a violation of the Wikipedia policy against ownership of articles, oblivious to who writes Wikipedia and the fact that Wikipedia is a work in progress. Any version, extant or possible, can be supported by relevant argument, and if necessary citation. We do not need to rely on the secondary validity of attributed and unverifiable editor authority. If an editor wishes to set in stone or otherwise restrict editing of certain language, they might consider self publishing. ENeville (talk) 18:46, 21 November 2014 (UTC)
 * I agree, but if the three paragraphs represent a heated consensus, then they should still not be changed. Per the new "definition" section (which is, of course, wrong), we may still need to watch the article for common errors.  — Arthur Rubin  (talk) 01:29, 22 November 2014 (UTC)
 * ENeville, perhaps a closer read of the note resolves your concern. There is no sense in which it "sets in stone" or asserts "ownership."  In fact, it invites further contributions from those that have subject matter expertise to contribute.  It simply observes that the three paragraphs are the product of consensus among a number of people that have that expertise, and that editors without that expertise might well choose to exercise judgment before inadvertently adding either error or misuse of specialized jargon.  As Arthur Rubin correctly notes, the immediately preceding "definitions" section in this talk page shows the bogosity that is out there trying to get in.  Your own edit demonstrates that unfamiliarity with specialized jargon also leads to the introduction of error.

definition
I believe the current definition in the initial paragraph to be written by someone who wholly does not understand what Common Law is.

Common law is not "law developed by judges through decisions of courts and similar tribunals" - these courts and tribunals merely ARTICULATE the law as it stands, not enact it, per se. The Common Law is derived from time immemorial and which largely goes without saying. This principal underpins the law in two noticeable and inextricable ways; firstly, it creates procedure & doctrine, and secondly, it provides power of interpretation.

To understand and experience common law first hand, look for a criminal law that criminalizes certain conduct without providing a definition. Then ask why it is that the same law applied in two jurisdictions would produce different results. That answer is that the common law of those two jurisdictions is different. — Preceding unsigned comment added by 60.240.69.86 (talk) 03:34, 10 July 2014 (UTC)


 * Dear unsigned 60.240.69.86 -- The last sentence of your post explains the error in your first two sentences precisely. "the common law of those two jurisdictions is different."  Exactly.  As you note, often a point of law exists nowhere in statute.  Most of the fine-line principles we take for granted today were first articulated by judges (well, to be entirely truthful, judges often obtain their ideas from parties' briefs.  But the first statement of the law by any official with the authority to pronounce law was a court).  If a point of law did not originate with a legislature or executive, the only possible alternative source is a court.  A court acting through its decisions that set forth that law.  Your statement, "The common law of those two jurisdictions is different" is true, precisely because two reasonable people can determine the law differently, and two judges did.


 * Another point of your statement is counterfactual. For anything but the most trivial of propositions, there is no consistent "time immemorial" on which any legal authority could rely, and thus (in common law systems), courts look to previous courts.


 * Nothing in the law "goes without saying," at least not in the United States. What would you want--every decision is made up on the fly with no reference to any consistent principle?  Do you realize what the consequences of that would be?


 * Courts make law. That's just the way it works.  (I clerked for a judge; I know from first hand experience how decisions are actually made.)  Any other explanation of "common law" is simply a denial of reality. — Preceding unsigned comment added by 73.38.59.62 (talk) 19:21, 1 January 2015 (UTC)

Definition can be improved wrt English usage (not wrt legal meaning)
At this writing, the definition is structured as follows: ''Common law ... is law developed by ... courts ... that decide individual cases, as opposed to statutes [of a certain type] ... or regulations [of a certain type] ... .'' This could be misread as meaning that courts variously decide INDIVIDUAL CASES courts deciding STATUTES or REGULATIONS.

If we're trying to contrast COMMON LAW OTHER TYPES OF LAW then we've got both a misplaced modifier and a non-parallel construction. The two things we're "opposing" are too far apart in the sentence, and they don't have parallel construction. We never use the phrases statutory law or regulatory law. Restructuring the sentence can increase clarity and reduce risk of confusion, while making no change at all to the definition. I propose we restructure the words as something like this: ''Common law ... is law developed by ... courts ... that decide individual cases. In comparison, statutory law is enacted by legislatures, and regulatory law is promulgated by executive branch agencies.'' or, even more directly parallel and consistent: ''Common law ... is law developed by ... courts ... that decide individual cases. In comparison, statutory law results from legislatures enacting statutes, and regulatory law is promulgated by executive branch agencies creating rules and regulations. '' I think these changes would make the distinction much more accessible to laypeople and English-second-language folks, yet with no sacrifice to accuracy. What do you think? Petershank (talk) 17:49, 8 May 2015 (UTC)


 * Agree, that would be better. Qexigator (talk) 18:04, 8 May 2015 (UTC)

Criticism section
There should be a criticism section - I'm surprised there isn't one, since there are for the pages of most legal institutions. Common law is often described as "undemocratic" and it would be interesting to hear the argument on both sides. Some sources I've found related to this:


 * http://www.jurisprudence.com.au/juris10/Steilen.pdf - discusses criticisms and defends common law
 * http://www.lawschooldiscussion.org/index.php?topic=4023572.0 - outlines criticism of common law
 * http://www.ourcivilisation.com/cooray/btof/chap185.htm - discusses criticisms but doesn't seem like a very well articulated piece. Defends common law by dismissing general statements about its problems, and then goes to say that it has had a fairer history than anything other than civil law (which in the modern context is the only other legal structure that matters).

Fresheneesz (talk) 20:34, 1 June 2015 (UTC)

Template:Anchor
Heads need to be the best they can be for this article, not locked for the sake of other unknown articles. Each page is written based on the WP:CON at that page. Likewise, you cannot rely on this heading staying exactly as it is anyhow. This is why we have Template:Anchor. I have made use of it this time, but it would best if you learn how to use Template:Anchor for next time. Since the anchors are hiden to readers, it would also be better if you would rewrite those other pages so that the anchors can be shorter and more memorable. Most anchor links are just a word or two. tahc chat 17:06, 28 October 2015 (UTC)
 * See.. this links right to "One: Common law as opposed to statutory law and regulatory law". tahc chat 22:24, 30 October 2015 (UTC)

slander in 1999
Can I still sue for slander that happened back in 1999?.........it definitely was a slander case,just didn't know if I could sue or not back then. — Preceding unsigned comment added by 24.240.5.182 (talk) 11:30, 13 May 2015 (UTC)

The statute of limitations has undoubtedly tolled. But this is the Talk page for a WP article, not a legal advice forum. Please limit your comments and questions to the topic. American In Brazil (talk) 10:34, 19 January 2016 (UTC)

Seeking consensus on proposed addition to main section.
Proposed addition: The common law itself is nothing else but reason. Reason is the life of the law. It is the perfection of reason, which commands what is useful and necessary and forbids the contrary. Layman, Esq. (talk) 04:20, 2 November 2015 (UTC)


 * No. If this were a direct quote it would need to be in quotations marks. Without quotation marks it would otherwise be plagiarism. If this is not a quote then it is personal opinion, and not saying anything very clearly.


 * Based on the different quotes in the citation it all seems to be just WP:OR based Layman's attempted synthesis of published material. If so, then it is a no either way. tahc chat 04:43, 2 November 2015 (UTC)


 * No. "Common law" is a term with a specialized and definite meaning, as definite as "cauliflower" or "Einstein's theory of general relativity."  Adding ill-informed, admittedly-layman diversionary imprecision like this is misleading, and not helpful.  As a layman (relative to physics), you may not have a clear idea of how general relativity and curved spaces work.  That doesn't make it a good idea to add a wrong explanation, just because it's one you understand.  Similarly, here, "common law" is a definite concept, quite well explained in the Introduction paragraphs.  Just because you are a layman (relative to the law) and that explanation hasn't sunk in yet, it doesn't make sense to add a wrong, mis-simplified explanation here.


 * To take only one example of the error in your proposal, even if one takes the "Commentary on Littleton" at face value, it says nothing remotely like "The common law itself is nothing else but reason." mjfalkner/Layman is engaging in imprecise (and incorrect) paraphrase, and confusing necessary with sufficient conditions.  The same mistakes are discussed heavily at Talk:Court_of_record, and mjfalkner/Layman may find it helpful to read that talk page to understand how to avoid being branded an unhelpful crank.  73.38.59.62 (talk) 16:13, 7 November 2015 (UTC)


 * Oppose. WP:OR. WP:SUMMARY. These statements essentially contradict the body of the article, and you're proposing to make it the summary the article? But thank you for asking first. Int21h (talk) 02:16, 8 November 2015 (UTC)


 * A BIG NO. WP is an encyclopedia, not a philosophical debate forum. Such comments add nothing to the reader's understanding of the topic. American In Brazil (talk) 11:14, 19 January 2016 (UTC)