Origins and Definition of Common Law

Often, people will ask “what is common law”.

And, just as often someone will provide a simple definition, but somewhat different than the one you heard before. So, let’s have a look at the term “common law” in its various contexts.

Common Law is basically a description of our legal system. The term is used with a slightly different meaning depending upon the context and the question being asked.

It is fair to say that Ontario has a common law legal system.

Historically, its origins were in feudal England. The Magna Carta (1215) an agreement between the King and his Lords is customarily viewed as the beginning of common law. But, if you read the document you will see that its origins were earlier than that. It would also be reasonable to say that it goes back to “time immemorial” which by the way is not the beginning of time, but 1066, the date of the Norman invasion. The fusion of French and English cultures at that time is also considered by some scholars as the beginning of the common law.

It is noteworthy that certain rights were given to free men (frequently referred to as commoners) and they had the right to have their disputes resolved in a Court of Law (which was called the Court of Common Pleas). Most disputes involved land. There were no specific rules to follow. So, each case was decided on its own merits. After a period of time, there was a need to have consistency, and it is this consistency, which led to important legal decisions being recorded (that is written down) and distributed so that others might rely upon them. These records of important decisions came to be used for guidance in other cases. Ultimately, important decisions became precedents, and would be applied in all similar cases.

The concept of “consistency” came to embody the elements of “fairness and justice”. Everyone was treated equally and their station in life was no longer relevant. The motto “justice is blind” embodies this very concept. As well, these basic principles were referred to as “the rules of natural justice”.

The system of legal precedents today is what is usually referred to as “common law”, that is “judge made law”, as distinguished from statutory law (passed by Parliament or the provincial Legislatures).

All provinces in Canada are “common law” provinces except Quebec, which has a legal system, based upon the “civil code”, a list of rules and regulations having their origins in France.

Oddly, the expression “to live common law” refers to a marriage of presumption in England. If two people (definitely opposite sex at the time) lived together continuously for a period of 7 years, it was then assumed that they had gone through a legal marriage (and had lost the documents), unless it could be proven that this was not the case. So, a common law spouse was a legal spouse for all purposes; the only difficulty was proving it.

Accordingly, when the term “common law” is used it has different meanings depending on the context:

1) in the broadest sense, it refers to “our legal system”,

2) in its narrowest sense, it means “judge made law”,

3) in its historical sense it means, “the laws in England pertaining to property and disputes between commoners”,

4) an occasional but more specific use might be a reference to the “rules of natural justice”, and

5) if it is used as an adjective, as in “common-law-spouse”, it takes its meaning from the noun in the expression, and likely has a specific connotation in modern English usage.

The entire common law system grew out of a need to deal with the various complex forms of land ownership that were prevalent in feudal England. As real estate developed, so did the common law.

Brian Madigan LL.B., Broker

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