Why Do We Care About the Common Law of Old England?
When most people hear the term “common law” they think of “common law marriage” in which two individuals can be considered legally married even though they never formally wed. Virginia is one of a majority of states in which you cannot create a common law marriage. Although common law marriage is a very interesting topic, this article will not discuss common law marriage. Instead, it will provide a basic understanding of the common law and how it is relevant to our modern legal system.
A brief history of the common law: The foundations of the common law dates to the Battle of Hastings in 1066, when William I conquered England. William I was determined to create a system to centralize the resolution of disputes. Thus, began the tradition of creating law through argument in court and the legal opinions of judges. This system, known as the common law, remains a foundation of our current legal system. The common law system worked because of stare decisis, which is the obligation of judges to honor prior rulings as precedent.
The Code of Virginia (1-200) states that “[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and the Constitution of this Commonwealth, shall continue in force within the same, and be the rule of decision, except as altered by the General Assembly.” This statute is a nice summary of the current status of the common law. Most states have enacted similar statutes. In Virginia, as in other states, when there is conflict between the common law and legislation passed by a governing body (“statutory law”), such as Congress or state legislatures, the statutory law overrules the common law.
It should be noted that, despite Virginia Code 1-200 and other similar state statutes, the courts of Virginia and all other states have selectively enforced the English common law; and have, over time, diverged significantly from English precedent. Furthermore, over time, courts of law effectively change the common law by deviating from the doctrine of stare decisis, in large part due to changes in public policy.
The tension and overlapping of the common law and statutory law is a feature of our legal system. Trial court judges are granted the responsibility of interpreting and enforcing statutory laws which may conflict with the common law. This partially explains why different courts can reach conflicting decisions on the same sets of facts. In theory, appeals courts (including the United States Supreme Court) resolve these conflicts.
The 2018 Virginia Supreme Court case of Cherry v. Lawson Realty Corp is an example of the intertwining of common law and statutory law. A tenant sued a residential landlord for mold problems, asserting claims under both the mold statute contained within the Virginia Code and several common law negligence theories. The trial court ruled that the mold statute precludes common law claims; and, therefore, dismissed the common law negligence claims. The Virginia Supreme Court reversed the trial court, finding that the common law survived the mold statute.
The role of the trial lawyer remains essential for the proper representation of clients and for the continued development of the American common law. Without definitive answers to every legal conflict, trial advocacy remains the bedrock of our legal system.
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