The term common law is regularly used by members of the legal profession and lay persons alike. However, the fact that it's used so frequently belies the fact that few people truly understand the term in its many iterations and context-specific meanings. In this article, I'm going to explain what the term common law means, what a common law legal system is, and how it applies to modern Texas personal injury cases.
Let's Start With Some Semantics
My friend and colleague Jeffrey Carr is married to a wonderful Belarusian-turned-freedom-loving American named Tanya. When they first started dating, she was still unfamiliar with American expressions and idioms, which often led to confusion. On one such occasion, their meal at a restaurant was comped by the owner, who told them, "Don't worry, your bill is on the house." Tanya quite literally thought this meant that the check had been placed on on the roof of the building! Absent some familiarity with the phrase, she simply took it at its literal meaning.
People often do the same thing with the term "common law."
Many folks hear "common law" and automatically assume it refers to "laws that are common," as in, "Both China and Russia have a law against eating cheese, so 'thou shalt not eat cheese' is a common law." That is an inaccurate usage of the term (though it does hint at the historical origin of the phrase, more on this later). Likewise, others think that "common law" is just a way of saying that X is "typical of the law." They may say something like, "The cops pulled him over for a busted tail light? Pssh, that's so common law."
Much like Tanya thinking that the check was on the roof, both of those interpretations involve taking things too literally.
Another way that people misuse the term is to treat it as a synonym for "natural law." Indeed, natural law and common law have some similarities, namely that they are both thought of as law derived not from legislation but from human experience and human nature. Nevertheless, they are different things.
While the term "common law" certainly has a couple of different meanings, the most important use of the term "common law" is in reference to an entire system of law originating in England. In this content, "common law" is a proper noun. I shall illustrate this point by henceforth referring to the common law legal system as "The Common Law."
What is The Common Law Legal System?
The Common Law is not a specific law or even a collection of laws so much as it is an entire system of law that originated in England hundreds of years ago. The central feature of this system of law is a concept known as stare decisis, meaning "precedent." Simply stated, The Common Law is a system of law centered around precedent.
The concept of precedent is pretty straightforward. Once a judge rules a particular way on a some legal matter, other judges in future cases will apply that same reasoning to similar cases and similar effect. Such consistent application fosters predictability within the system of law, and predictability is arguably the key selling point of The Common Law legal system.
Imagine you are a business owner who wants to sell paintball guns marketed to teenagers. You run the risk of facing liability, if one of your customers were to be injured by your product. As such, you decide to only sell these products to children age 14 and older. You choose the age of 14 as the lower limit, because you read a court decision which said that manufacturers owe a special duty to protect customers age 13 and under from hurting themselves, yet people 14 and older are deemed by the court to be mature enough to assume the risk of a product that can be injurious if misused.
If your company sold this product in a country that has adopted The Common Law legal system, you could trust that marketing your product to children 14 and older is a safe and prudent move. If a 14-year-old customer were to hurt themselves with your product and then sue you, you could point to that past court decision and know it will be relied upon by the court presiding over your case. In you were selling your product in a non-common law country, however, you would be afforded no such clarity by the court. The judge in your case may rule that, actually, 16 is the "safe" age group to market your product to, disregarding the decision of the court in the other case which you relied upon.
As you can imagine, legal uncertainty can prove vexatious to businesses and individuals alike. The predictability of The Common Law system makes it a match made in heaven for commerce. Indeed, while it is quite typical to chalk up England's emergence as an economic and political superpower to colonialism or the Industrial Revolution, the role that The Common Law system played in facilitating the commerce which made this ascendence possible should not be understated.
It's also worth noting that precedent is never frozen in time. Since no two cases are ever identical, precedent can evolve as new variations of a specific case type come before the court.
For instance, if a judge rules that horse owners are responsible for injuries resulting from horses escaping their barn, that would establish precedent over future runaway-horse cases: the default position of the court would be that the horse owner is liable under most circumstances. For the next few years, all runaway horse injury cases are fairly open-and-shut. Now imagine that, many years after the initial horse-escape precedent was established, a new runaway-horse case comes before the court. Only in this case, there's a catch, because the horse owner can show proof that his horse escaped not due to carelessness but because a storm damaged the barn and allowed the horse to escape. Surely, under those circumstances, it's reasonable to assume that the new judge in this new case would apply most of the same reasoning as the former judge did, but she'd probably modify things a bit to account for the special circumstances. Thus, she would, in effect, create new precedent.
Most people are familiar with the nuts and bolts of precedent. But what is perhaps less obvious is that precedent is not just a judicial guideline, it is itself law. To understand how precedent is law, we'll need to consider the origins and history of The Common Law.
How The Common Law Came Into Existence
The history of England is a bit complex, yet knowing a little about it will aid in our understanding of The Common Law.
Around the time of the Roman Empire, the land we now call England was inhabited by peoples referred to as Britons. Early Britons were a mishmash of culturally distinct communities made up of immigrants of Caledonians/Picts of ancient Germanic origin, Silures peoples of Iberian origin, Gauls, and, of course, Romans. When the Roman Empire fell, the Anglo-Saxon (modernish Germanic) people of mainland Europe invaded, followed by all manner of minor Viking conquests. England was essentially under rule of these Germanic people for a few hundred years, ultimately leading to a blending of the cultures. Then, in the 11th century AD, William The Conquerer, hailing from what is now modern day France, yet himself being of Viking origin, invaded England, bringing Norman culture along with him. This represented a paradigm shift for English history. William the Conquerer's heirs ruled for about 300 years, and then power shifted once again.
While the details mentioned above amount to little more than trivia in and of themselves, the main takeaway is that England was was a melting pot of different cultures, many of which formed somewhat isolated pockets in their own corners of the island. These distinct cultures all had their own legal customs, borrowing pieces from Roman law, Biblical traditions, and thousands of years of tribal law and customs of Germanic origin, which resulted in tremendous disharmony in the application of the law. Each new group that would invade would force their culture and legal customs on their neighbors, then, after a few hundred years, these cultures would meld into a cultural mixture. Soon enough, this mixture would be disrupted by yet another invasion. While it's easy to think of England and its related neighbors as a single unified entity, the reality is that, around the time of the early 1000s AD, it was sort of a cultural buffet, and there was tremendous variance by region within England concerning the administration of justice. To be certain, big-picture laws and policy were established by whatever tyrant happened to occupy the throne at the time. But local disputes among individuals were still administered using an array of legal theories, most of which stemmed from Roman law and Germanic tribal customs. Local judges presided over these matters, but it's debatable as to whether anyone of nobility had to recognize the court's decisions, and the king most decidedly did not.
Another important and transformative event, the signing of the Magna Carta, happened in 1215. Essentially, England was ruled by a despotic king (do kings come any other way?), which prompted lower-level noblemen and lords to more or less force the king, under threat of war, into signing what was essentially a declaration of rights and an admission to the limits of his own power. While the Magna Carta was largely a symbolic gesture that was not truly honored by the king in its entirety, it did cement the notion that certain classes of individuals were entitled to due process under the law and it established the Court of Common Pleas (the analog to our modern day district court). The significance of this event cannot be overstated. This meant not only that the judiciary had authority of its own, it also meant that the king himself was not the sole creator of law; judges could create law too.
To be clear, judge-created law was not created by the Magna Carta. It predated the Court of Common Pleas by perhaps a few hundred years in England, as judges had been creating law for some time. But the Magna Carta solidified the legitimacy of the court's decisions by making them, for all intents and purposes, equal to kingly decree, or at least immune from kingly decrees to the contrary, absent the due process of law. Prior to the Magna Carta, the king had the authority to simply promulgate or change law as he saw fit, but now it was recognized that the king's domain was that of administering the law, not of creating it. For those of us who deeply cherish the separation of powers, it's hard not to get a little misty-eyed when pondering the significance that the Magna Carta played in the history of human affairs.
As mentioned earlier, England had many distinct cultural centers within its borders. This lead to a vast array of legal decisions that were inconsistent with one another. In order for the Court of Common Pleas to have any real significance, these distinctions would need to be eliminated. In an effort to consolidate the laws of England, judges from the Court of Common Pleas began to ride the circuit, setting up shop in all reaches of the realm and creating law that was binding on other judges. This desire to unify the law is where the word "common" in the phrase The Common Law comes from. Again, I will stress that the term now refers to the legal system (or components of that system), so using the term "common law" to mean "laws that are common" in our day and age is largely incorrect. Nevertheless, as a matter of historical curiosity, its name does indeed derive from the simple notion implied by the phrasing.
The Common Law system that came to fruition was more than just the idea that judges could create precedent. Rather, creating precedent was the way that law was created in England for centuries, and precedent-created law essentially replaced kingly proclamations.
As time went on, of course, England developed a legislature comprised of elected lawmakers whose job it was to create codified law; that is, law designed by committee rather than by judges. This concept of statutes being passed by a legislature did not eradicate the need for judge-created law. On the contrary, the two methods for creating law essentially blended together. So even though The Common Law started out as a system where judges created virtually all law, it evolved into a hybrid system where both elected officials and judges could create law, but in different ways. Elected officials form a legislature and create laws through the passage of bills which are voted on to become codified law, and judges create laws every time they interpret codified laws or when they make a ruling on a legal matter that the legislature hasn't yet passed a law about.
That last part is key. In countries that use a Common Law System judges create law whenever they issue rulings which establish precedent. That stands as the law of the land, unless a legislature then takes up the mantle and creates codified law, which, as a direct and express will of the people, effectively overrides precedent.
A very good example of this balance between the legislature and the courts in their respective capacity to create law is that of Texas liquor liability law in the late 1980s. In a landmark case, El Chico v. Poole, the Texas Supreme Court ruled that there is indeed a common law cause of action for suing bars when they negligently provide alcohol to a customer who then hurts someone in, say, a drunk driving accident. This ruling prompted immediate response by the Texas legislature, who felt that the idea of "negligent service of alcohol" was too vague. Consequently, they passed the Texas Dram Shop Act, which respected the court's notion that some conduct can get bars sued, yet it narrowly defined that unlawful conduct to consist of providing alcohol to children and knowingly providing alcohol to someone who is already dangerously drunk. The statute also provided a "get out of jail free" provision for bars that can prove they normally follow the rules and run a tight ship.
As you can see, absent a legislature chiming in on a subject, the court is free to create case law. Once the legislature decides to tackle a subject, the law they create reigns supreme, unless it is invalidated as being unconstitutional or otherwise defective.
That balance, my friends, is the very essence of The Common Law.
Common Law in America
Some countries other than England chose to adopt The Common Law system upon founding their nation. Others had The Common Law thrust upon them due to English colonialism. Either way, becoming a country that employs The Common Law meant that fledgling nations got more than just a legal system; they also adopted England's entire history of cases (everything from contract law to personal injury law to real estate law). So, when America became a nation, its founders chose to adopt the English Common Law system (the same is true for Texas when it became a nation and then a state). As such, on day numero uno in America, with virtually no codified law of its own, America did in fact have a tremendous body of law... the entirety of court decisions that England had created to date.
If you were to look at English Common Law and American Common Law circa 17XX, you'd find that they were quite similar. However, America obviously started out with vastly different codified law in the form of the Constitution (as did all of the states in America who each had their own constitutions). Naturally, some of the English Common Law principals had the potential to run afoul of American codified law, and, of greater significance, American judges developed their own brand of ingenuity and a distinctly American identity. Consequently, if you were to compare the modern Common Law of England with America's own fully developed common law, you'd find that they're now pretty distinct from one another in many meaningful ways. This is because, on day one of America, we adopted all of their laws and their system of law, and then our version began diverging at that point.
Nevertheless, we are a Common Law country, judges possess (and always have possessed) the authority to create law where a legislature has not yet done so, judges have the authority to interpret legislation, and the underlying concept of stare decisis is still a major source of law in the American legal system.
Usage of the Term "Common Law" in the Modern World
Simply put, there are four ways that the term "common law" is used in the modern era:
- When referring to The Common Law legal system, generally, which we covered above.
- When distinguishing between precedent-based law and codified law. For instance, a lawyer may say, "If someone is injured on the job, they typically hold their employer accountable under their state's workers' compensation statute. But if their injury was caused by a third-party other than their employer, they would sue them under common law." Essentially, that lawyer is saying that, if the employer caused the employee's injuries, then the employee can file for benefits per the codified workers' comp laws of their state that were drafted by the state's legislature. But, if the injury was caused by, say, a car accident, then the employee would file a lawsuit against the wrongdoer for negligence, which is a common law legal principal. In this instance, lawyers don't use the term common law to refer to the system as a whole. Rather, when used in this form, they differentiating between between judge-created law and legislature-created law.
Sometimes, to make things a bit more clear, lawyers will use the term case law. Case law is just another way of saying "court decisions" or "precedent-based law". So, really, you can interchangeably use the terms common law and case law to mean effectively the same thing, in this context. - To distinguish between cases governed by common law and cases governed by equity law. This is a little tricky to explain. Back in England, around the 1400s, judges were well under way creating precedent-based law within the Common Law System, as we discussed earlier. This law came from precedent established in The Court of Common Pleas. However, as The Common Law evolved in the Court of Common Pleas, it began to focus primarily on awarding damages (money) to people who had been wronged. If a man broke his neighbor's fence, he would get sued for damages and the victim would use the money to build a new fence. If a woman trespassed on her neighbor's land and stole their turnips, she'd get sued for damages and the court would award a monetary equivalent to the victim.
The problem with suing for damages is, even though it works well for solving the vast majority of legal problems, there are some legal problems where you don't want the dollar value equivalent of what you lost, you want the actual thing you lost. For instance, if someone stole your dog, getting the money to buy a replacement dog wouldn't do the trick. In all likelihood, you just want the court to make the defendant give you your darn dog back. Well, judges in the Court of Common Pleas, acting upon established precedent, couldn't make that happen. Enter the Chancery Court (otherwise known as Courts of Equity). Chancery Courts solved problems differently than the Court of Common Pleas, by instead working toward "equitable resolution" in a variety of forms rather than by awarding damages. For instance, they could make a thief give you your dog back. Some of the ways they could dispense equitable justice include: specific performance (making someone fulfill a contractual obligation), promissory estoppel (you promised something, someone acted in good faith, then you changed your mind leaving them holding the bag, so the court makes you fulfill the promise), injunctions (a court order than enjoins someone from doing something), etc. All of those equitable remedies were performed in the domain of the Chancery Courts. So too were certain subject matters within the law. For instance, family law cases are still to this day a matter of equity law, while personal injury cases are a matter of common law. But make no mistake about it, Chancery Courts (and the equity law they created and lorded over) are indeed part of The Common Law legal system. It's just that sometimes within that system a distinction needs to be made between the two. Case in point, the US Constitution recognizes a right to a trial by jury "in suits at common law." The Constitution does not use the term common law the way it's used in #2 above, meaning the Constitution isn't saying that you have a right to trial by jury in suits based on case law but not in suits based on legislation. No, they are using the term common law (in that part of the Constitution) to differentiate between common law and equity law WITHIN the global Common Law system. In other words, America adopted England's Common Law system, which included both common law case law and procedures and equity law case law and procedures. But the right to a trial by jury was guaranteed only for suits at common law (as was the custom in the Court of Common Please) but not for suits at equity (as was the custom in the Chancery Courts). In practical terms, this means that the US Constitution guarantees a right to trial by jury in common law matters such as personal injury, defamation, and contract cases, but it does not guarantee a right to trial buy jury in equity matters such as family law or probate cases.Ergo, the third usage of the term "common law" is to distinguish between common law and equity law within the Common Law system. - To refer to specific legal concepts within The Common Law legal system. Everyone has heard the phrase "common law marriage" or "common law fraud." This just refers to the way that those things were/are defined under The Common Law. Since Texas is a common law state, we still have common law marriage, which is just a fancy way of saying that marriage need not be officially recognized in order to be legally valid.
Where Do Certain Cases Come from, Common Law or Codified Law?
The feature of common law most germane to injury law is the concept of common law negligence. This legal doctrine holds that every person owes every other person the duty to refrain from inflicting harm on them. It imposes on all of us a duty to behave as a "reasonably prudent person" would behave under the circumstances. In any lawsuit that you file, you must cite some authority by which you are suing the wrongdoer. If you sue someone for negligence, you are, of course, claiming that you have the right to do so under the authority of long-established common law principals.
But not all cases derive their authority from common law. There are many causes of action that now grant you the right to sue someone that don't exist in common law.
For instance, there is no common law right to sue for wrongful death. One could sue for injury under common law principles, but the right of a surviving family member to sue after having their loved one taken by someone else's negligence was not recognized by the courts. Many people felt that this was unfair. After all, isn't an accidental death the ultimate form of personal injury? Further, if you hurt someone and can get sued but you're immune from liability if they die, wouldn't that incentivize you to "finish them off" in order to avoid liability? Texas lawmakers decided that it was unfair to deny family members the right to hold a wrongdoer accountable for killing a loved one, so they passed the Texas Wrongful Death Act which created a new cause of action by way of codified law.
But, just the same way that there are some causes of action that are not found in common law, there are some causes of action that are exclusively a matter of common law principles, and no legislature has drafted a law establishing the right to sue. For instance, if someone causes a car accident and injures you, don't bother searching for a written Texas law that tells you that you can sue them. Instead, you just apply the age-old common law negligence cause of action and sue them accordingly. But it's a little more complex than that. There are indeed many codified traffic laws found in the Texas Transportation Code, which dictate everything from passing maneuvers to stopping to check for traffic as you back out of your driveway. So, even though you'd use a common law cause of action as the basis for your car accident lawsuit, you'll likely prove the things you need to prove to win your case by showing that the wrongdoer violated one or more of Texas' codified automobile laws.
And the relationship between common law principles and codified law can get even more intricate than that.
For instance, Texas lawmakers passed a workers' comp statute many years ago which basically says that employers can opt in to the workers' comp benefit system by buying a certain kind of insurance. For those employers who choose to opt in, they are granted virtual immunity from work injury lawsuits. Instead of being able to sue negligent employers who opt in to our state's workers' comp program, workers can only receive benefits, paid out based on a formula. In essence, by opting in to this benefit system that was created by the Texas legislature, the employee's common law right to sue for negligence is eliminated.
But for employers who opt out of the WC system, their employees retain the common law right to sue the employer for negligence. To summarize, if the employer opts in to the workers' comp system, injured workers' cant sue under common law. But if the employers opts out of the workers' comp system, then employees can still sue the employer under a negligence cause of action.
Then things get really interesting. Just the same way that The Common Law allows for victims to sue by using off-the-shelf, long established legal theories, it also allows defendants (the accused) to defend themselves by using off-the-shelf, long-established legal defense theories. However, Texas lawmakers didn't want companies to opt out of workers' comp and then be able to easily defend a case against an employee who sues them. So, the workers' comp statute states that employers who opt out are barred from using many of the common law defenses that employers have used for centuries, such as the argument of contributory negligence (the theory that the inured person shouldn't get full compensation, because they too were also negligent).
So, in essence, your right to sue your employer is established under common law, and so too is their right to use certain defenses against such claims. Then along comes a Texas codified law that essentially removes some of the common law rights for one group of injured workers, but simultaneously grants an expansion of certain other common law rights by limiting an employer's common law defenses. Or to phrase it another way, in a work injury case where a worker is employed by a company who opts out of the workers' comp system, a codified law says that the worker can use common law theories to sue their employer, yet that same codified law says that employers can't use several important common law defenses, but they can use a few other defenses.
Confused yet? Despite all of this, we still regularly field the question of, "Do I really need an attorney for my work injury case?" Yeah, I'd say so.
By now it should be quite apparent that one hand washes the other. We have a system where both common law principles and codified law together make up the complete legal landscape.
What's More Important: Codified Laws Drafted by Lawmakers or Common Law Created by the Court?
To keep things simple, we'll just cut to the chase: Judges can make rulings that effectively create law on matters where elected lawmakers have't yet created law. The court created law stands indefinitely. But once the legislature decides that they want the law to work differently, they can draft a written law that overrides the court's decisions. From that point on, the courts can't substitute their own laws unless they can show that the law the legislature passed was somehow a violation of the Texas or US Constitution. But even if that happens, if the lawmakers don't like a judge's ruling they can always propose a vote to change the Constitution. It sounds crazy since it rarely happens, but the US Constitution has been amended 27 times and the Texas Constitution has been amended many hundreds of times, so it does happen.
What this means in practice is that cases wherein one person sues another under some novel theory of liability (or because of unusual circumstances) can accidentally bring some new legal issue to the public's attention, as no court or lawmaker had considered the issue in the past. Once that case is decided upon, precedent is established. Lawmakers can then either agree with the ruling and let the case law stand or they disagree with it and draft new codified laws in response. A great example of this can be seen in the history of laws surrounding the internet. There have been few statutes passed by Congress related to the internet, but there have been all manner of cases that have done things like recognize that speech on the internet is protected speech. Such new codified laws override the precedent, unless we're talking about case law from the US Supreme Court. Though, even that can be swept aside if lawmakers can successfully get a constitutional amendment passed.
As you can see, simply defining the term common law is no small task. Imagine what it's like to walk in the shoes of one of our firm's attorneys who must decipher which particular usage of the term a judge meant in a legal decision. I'd say they've got their work cut out for them.