Talk:Common law/Archive 7

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Proposal

My comment in the Rfc section above ("While some recent IP edits may be seen by others as at least out of place... )" may be taken as a preamble introducing the proposal below.

Whether or not "connotations" is retained (with numbering or not), presentation to readers of the article's content would be improved with a lead-in portion in the main text (not in the opening lead) based on authoritative sources, such as OED and Black, which describe the use of the phrase "common law", referenced in those sources to their primary sources, such as literature or law reports. Below are a longer and shorter version of a proposed text, for discussion:

• Longer version

Description

In Oxford English Dictionary (1st edition 1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiasical law, and admiralty law. Citations supporting that description before Blackstone, are from the 14th and 16th centuries. For usage in the United States, supported by two citations from 19th century sources, the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them". The current OED online[2] presents: common law: 1. The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1 The body of English law as adopted and adapted by the different States of the US. Compare with civil law.

Similarly, Black's Law Dictionary (1968 edition) containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, described "common law", first, as the "body of law and juristic theory which was originated, developed, and formulated and is administered in England, and has obtained among most of the states and peoples of Ango-Saxon stock", as distinct from law created by the enactment of legislatures, equity law, and ecclesiastical law; and secondly, "as concerns its force and authority in the U.S., that portion of the common law of England which had been adopted and was in force at the time of the Revolution", including such acts of parliament as were then applicable, while federal common law is described as "a body of decisional law developed by the federal courts untrammeled by state court decisions."

Those descriptions show that after the founding of the United States as a federal republic in the 18th century, the words "common law" as the name of a particular body of law came to have different connotations in England and in the United States.

Connotation

Connotations of the term common law in current use continue to vary according to context. ...

• Shorter version

Description

The "common law" can briefly be described as the part of English law that is derived from custom and judicial precedent, and is distinct from law, equity law, and ecclesiastical law; or, in the U.S. jurisdiction, the body of English law as adopted and adapted by the different states .Similarly, in Black's Law Dictionary (1968 edition) containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, "common law" in the United States was described as the portion of the common law of England that had been adopted and was in force at the time of the Revolution (including such acts of parliament as were then applicable), and that now forms part of the law of most of the states, while federal common law was described as a body of decisional law developed by the US federal courts untrammeled by state court decisions.

Connotation

Connotations of the term common law in current use continue to vary according to context. ...

Qexigator (talk) 11:54, 4 June 2016 (UTC)shorter version added 23:13, 4 June 2016 (UTC)

I have gone ahead and done Shorter and Longer, as here[3]. Qexigator (talk) 17:38, 5 June 2016 (UTC)

+ For an example of the current use of "decisional law" among US lawyers, see excerpt reproduced from American Legal Systems (Toni M. Fine, LexisNexis)).[4] Qexigator (talk) 15:22, 4 June 2016 (UTC)

As the Prego commercials say, "It's in there." https://en.wikipedia.org/wiki/Common_law#Connotation_4._Informal_uses_among_nonlawyer_laypersons I added it at your behest (see https://en.wikipedia.org/wiki/Talk:Common_law#Request_for_comment_on_three_connotations" Comment of Qexigator 1 June 2016 (UTC) + 05:45, 2 June 2016 (UTC)) -- consider it yours. Connotations 4 and 5 are about historical and deprecated uses that are different than current usage -- as your own dates confirm, that's exactly where this belongs. Do anything you want with it, Connotation 4 in particular. This is a great place to discuss obsolete and deprecated 1968 Black's definition and the 1933 OED definition and all the 19th century stuff you want. Go to town with all the etymological and historical information you can find (it's a little bizarre to spend almost as much space explaining and justifying your sources as explaining the topic, but, hey it's your choice).

But that doesn't change the basic fact -- your approach is not set forth as an important or lead definition in any current source created for and relied on by specialists, and runs counter to the lead definitions that are in such sources. Your approach does not reflect a current or precise definition -- it's not even correct. It's very helpful to include this, precisely so that Wikipedia can explain why it's wrong. But it would be silly, indeed misleading, to make this any kind of "lead-in" or preamble.

See why I asked you "Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again"? We've gone from a concern for numbering -- which turned out to be unwarranted when the single best source (the current Black's dictionary) turns out to use almost identically the same numbering -- to a rewrite of the lead paragraph -- which turned out to be unwarranted when I pointed out that your preferred source is 50 years old, and the publisher recognized that it was erroneous and replaced it almost 20 years ago -- and now this. It's time to call it a day, Qex.

98.229.147.75 (talk) 15:40, 4 June 2016 (UTC)

Great idea to break out the Black's 1968 definition for separate discussion. It belongs in Connotation 4, so that's where I put it. I took your suggestion nearly verbatim. I didn't go back and check that your quotes were accurate--you might want to do that for yourself. Thanks for the helpful suggestion.

I've pointed out all the problems with the OED 1933 and Black's 1969 4th before, and you've been silent in response. In the law, silence (when you have an opportunity to respond) is taken as acquiescence, so I will assume you're happy with including a list of reliability problems in the article. It would be misleading to present Black's 1969 as if it were a reliable source, when even the publisher no longer stands behind it.

98.229.147.75 (talk) 00:41, 5 June 2016 (UTC)

Noted.[5] Qexigator (talk) 06:39, 5 June 2016 (UTC)

IP is at it again: his edit was not at the "behest" of ...Qexigator (talk) 15:22, 4 June 2016 (UTC)

IP has been at it again, with comments which seem to be based on a supposition that editors must write as if under the domination of some American law enforcement agency, and IP is the enforcer! --not to mention some poor edits pretending to be as proposed by.... Qexigator (talk) 06:04, 5 June 2016 (UTC)

No, my supposition is that we're trying to explain accurately, not advance some agenda of one uninformed editor. I've noticed that you have NEVER either countered to explain that Black's 10th is anything other than reliable, you seem to not disagree what Black's 10th stands in genuine opposition to the position you want to state, and you have never expressed any disagreement with my catalog of the multiple errors in the OED 1933 and Black's 1968 definitions. If you don't disagree that your sources are wrong, why are you continuing to push them? Unless you explain that there's some error in the modern dictionaries, some error in my analysis of your obsolete and deprecated sources, or some way to reconcile the old and the new, your insistence on text -- with no supporting rationale -- is simply irrational.

There are two rational ways for Wikipedia to go on this issue --

• Include your paragraph, but explain that one of your older sources has been deprecated by the publisher. Both are erroneous, and the errors can be shown by comparison against modern, specialist sources.

• Simply not include erroneous material

I am perfectly comfortable with either approach. The only thing I will stand in your way on is your presentation of brazen error, drawn on 50-and-80 year old sources that have been deprecated and are not reflected in modern sources, without explaining that your old sources are superseded, as if it had any modern currency.

There's a simple principle at work here. Sources that may have been considered "reliable" when they were published can become "unreliable" later. That's what we've got here. Your 1933 and 1968 sources are no longer reliable. You are not relying on "reliable sources." They are just plain wrong.

98.229.147.75 (talk) 11:26, 5 June 2016 (UTC)

Just so you've got it in one place, the errors in the OED 1933 defintion include the following:

• It is incorrect--“common law” is written. Legal systems only function when the rules exist in writing so they can be applied consistently. Common law exists only to the extent it is embodied in written opinions of judges and similar tribunals.
• It is incorrect--“common law” is not embodied in commentaries, but only in the case law itself. A commentary no more embodies "the law" than a travel guide embodies the destination. Commentaries are only “finding aids” and opinions of the authors, not law themselves.
• It is incorrect--“common law” is not only administered by "the King's courts," but rather by all courts in all common law countries, not just England, including many where the influence of "the King" ended decades or centuries ago. Strikingly in connotation 1 (see below), “common law” practice governed courts of equity, which were specifically set up to be not "the King's courts."
• It is over-inclusive--much of the practice of English courts from centuries ago is not part of the “common law.”
• It is under-inclusive--much of what we now call the “common law” is of recent vintage, in decisions as recent as yesterday. Any connection to “ancient usage” is at best irrelevant today, except as a historical footnote. “Ancient usage” is irrelevant to a definition or precise understanding.

The errors in the Black's 1968 definition include teh following:

• In 1999, the publisher hired a new editor, who redid the entire dictionary under much more careful lexicographic practices. When the editor and publisher recognized that the 1968 definition was incorrect, the 1968 definition was removed from the 1999 edition. No analogous definition is in today’s Black’s, and this definition is deprecated.
• The 1968 Black’s definition is both under-inclusive and under-inclusive. For example, “common law” includes case law up to the present; it did not end at the American Revolution. (The Revolution is important for the scope of the Seventh Amendment, but irrelevant to the definition of “common law.”) “Common law” is not limited to England; common law is administered in roughly one hundred jurisdictions, most of which are enumerated in the opening paragraph of this article.
• Common law is distinct from equity law for some purposes, and equity law is a subset of “common law” for other purposes. The Black’s definition, which states that common law is “distinct” from equity, is imprecise to the point of being wrong.
• The definition of “federal common law” is simply wrong. For example, state common law and federal common law influence each other extensively. Federal courts decide state law issues, and state courts decide federal issues--these decisions can have significant precedential value in the other court system. (The 1968 Black's definition is nearly unchanged from its original drafting in the 1890s, when the two systems behaved differently vis-a-vis each other than they have since 1938. The failure to update this definition when this relationship changed in 1938 is one symptom of the rather haphazard approach taken in earlier editions of Black's.)

Your statement "Those descriptions show that after the founding of the United States as a federal republic in the 18th century, the words "common law" as the name of a particular body of law came to have different connotations in England and in the United States" is pure gibberish. The term has the same meaning (and set of meanings) in both. The conflict is between the incorrect older sources you want to promote vs. the newer, specialist sources (which, apparently, you don't disagree with).

As I pointed out yesterday, citing an old source as if it were a current reliable source, without pointing out known subsequent sources that deprecate the earlier, is one of the forms of intentional deception that gets lawyers sanctioned, potentially up to disbarment. I pointed that out, yet you quite intentionally head that direction. What are we to conclude?

If you want to move the ball forward, any rational person would come forward with an explanation on each of these points. Simply ignoring problems, without comment, is the mark of a less-than-rational person.

98.229.147.75 (talk) 12:05, 5 June 2016 (UTC) amended 13:23, 5 June 2016 (UTC)

Noted, IP has acknowledged that we are not advancing some agenda of one uninformed editor, presumably such as the IP, who appears to be well out of his depth about the topic and how to present the information to readers. The rest of that comment is a travesty of my position, and a further example of a tendency to hector and traduce. He has been advised here[6] how his time could be better employed in the aspiration to "steer a couple of pro se's away from relying on bogosity". Qexigator (talk) 15:49, 5 June 2016 (UTC)

My only agenda is correctness. Since you haven't made any rebuttal of the showing that your approach is inconsistent with modern, specialist sources, and you've offered not a word of rebuttal to the catalog of inaccuracies I set out here, I wonder how you avoid the logical consequence of that silence and failure to engage. In any forum, silence on this type of showing of error is acquiescence to the showing-- in this case, that your approach is obsolete, deprecated, and incorrect.

To be clear here, I think the text you offer is fine, it only has to be changed from present tense "can" to past tense, with an explanation for why your proposed text has passed out of usefulness. You've done a great job of explaining a historical artifact. However, your approach is end-to-end inaccurate as a description of anything in the present day.

Your response to each of the above points is probably essential at this juncture.

98.229.147.75 (talk) 18:42, 5 June 2016 (UTC)

It may be surmised that most contributors are disinclined to respond to an IP who engages in gross incivility, overstatement and mistatement. For information, the present tense "can" is, for reader's convenience, sourced from a current online website[7], but the link to the OED article is not appropriate there, and I have removed it. Qexigator (talk) 19:34, 5 June 2016 (UTC)

Those with any experience in such matters know that it's simply pointless to base an argument on an everyday dictionary for the meaning of a specialized term. In any legal proceeding, everyday dictionaries are not considered "reliable sources" at least when they conflict with specialized dictionaries from the specialized field. Do you have any basis to believe that that rule should not control here?

Likewise, in the law, when a source publishes a later version of a document that replaces an earlier version, the later version controls, and the earlier version is no longer a reliable source (except as a historical record). Do you have any basis to believe that that rule should not control here?

I have no doubt that one can find several non-specialist dictionaries that state an informal (to the point of incorrect and misleading) definition. But read the Oxford online definition yourself -- I suspect you will see the flaws instantly. If you read it, you'll agree that it doesn't even agree with your view of the topic. The Oxford online definition is both under-inclusive and over-inclusive. (Which pains me, since Oxford University Press is my publisher.)

98.229.147.75 (talk) 20:31, 5 June 2016 (UTC) updated 22:05, 5 June 2016 (UTC)

Input error corrected.[8] Qexigator (talk) 22:17, 5 June 2016 (UTC)

I fully concur with Qexigator and FuriouslySerene's assessment of the situation above. FuriouslySerene has clearly and cogently explained his/her concern---while it is clear that the term "common law" has multiple related connotations, and that sources like Black's Law Dictionary do support that fact, nothing in the article shows that the particular sequence or typology given therein is in common use. In other words, the vast majority of lawyers in the common law world will agree that the first three connotations are all equally valid (that is, when such connotations are explained in detail to them), and also agree that they have to be distinguished from various historical meanings, but they will have no idea what you are talking about if you walk up to them and spontaneously start talking about "connotation 1 of the term 'common law'" without explaining what that is. So the article should expressly signal in its text that it is arbitrarily imposing a particular typology in order to efficiently convey the sheer complexity of the concept, but that the numbers thus imposed are not actually in common use in the legal field at this time. The fact that the anonymous IP editor is not engaging on that issue and keeps rambling about tangents is quite telling. --Coolcaesar (talk) 07:12, 6 June 2016 (UTC)

Thank you Coolcaesar. Somehow, 4 weeks and dozens of comments later, the IP still doesn't get this basic point. I think you should move this comment to the RfC section by the way, just for the closing editor's sake. And I don't think we should retain the format since that would be WP:OR (and it's entirely unnecessary and overly complicated and does not help the reader understand the text, in my opinion). FuriouslySerene (talk) 13:33, 6 June 2016 (UTC)

Thanks Coolceaser. I added that very explanation in a footnote almost as soon as the issue surfaced -- I didn't discuss it on the Talk page because I engaged with it in the text. I can't do it now, but I'll move the footnote into the text within a day or so. Does that close out the "connotations" issue? 98.229.147.75 (talk) 14:18, 6 June 2016 (UTC)

Ah, I see Qexigator already took care of it. Thanks.

Now we come to the other problem. This is another round with an editor that is singing the tune of the Cliven Bundy / no Sixteenth Amendment crowd, the folks that insist that the common law ended with the American Revolution, that we still operate under the common law as it existed in 1789, and all subsequent legal developments are unconstitutional. Up the page, you'll see that Qexigator pointed us to the National Liberty Alliance web site. Whether Qexigotor is or is not part of this bunch, I don't know -- but the points he wants to introduce are the same ones that Coolceasar and Famspear and I have repelled in the past.

I believe the article should, first of all, be accurate. As one example, "the common law" is as recent as the Supreme Court's opinion from 10AM this morning, not frozen in time in 1789. In today's world, Antonin Scalia and Steven Breyer are the relevant authors of the common law; Coke or Blackstone are not "law" -- they're just commentaries. The article should not imply otherwise.

Similarly, other artifacts of the 1890 description from Black's 1st Ed -- which had carried forward almost verbatim though the 1969 edition, despite Erie, FRCP, merger of law and equity, and the Field Code and all the rest -- should not be presented as current fact. Fine to discuss historical artifacts if they are labeled as obsolete, but it's not OK to present them as current reality.

That's the current point of disagreement.

98.229.147.75 (talk) 14:36, 6 June 2016 (UTC)

I concur with 98.229.147.75 -- Quexigator's proposal may track older dictionaries, but those older dictionaries are themselves not accurate. I first got Black's Fifth Edition (1970s) when I started practice. I recall reading this specific definition and thinking "this doesn't tell me a god damn thing." I remember when Black's Seventh came out in the late 1990's -- the clearer. more-correct approach was visible on every page. I urge that we track Black's Tenth, and throw earlier editions on the ash heap of history. 204.9.220.36 (talk) 21:34, 6 June 2016 (UTC)

Contrasts between common law and civil law

The section "Contrasts between common law and civil law systems" does not read well. It goes back a long way (October 2009),[9] but it is still in a raw state, and unsourced. I will go ahead and replace it, but maybe more is needed here and in other parts of the article where common law is compared with civil. Qexigator (talk) 09:50, 11 June 2016 (UTC)

...done.[10] (talk) 15:08, 11 June 2016 (UTC) + 15:59, 12 June 2016 (UTC)

+ Also, "Common law pleading..." trimmed and sourced.[11] Qexigator (talk) 18:59, 11 June 2016 (UTC)

Draft outline

There is a draft for an outline on common law at Wikipedia:WikiProject Outlines/Drafts/Outline of common law if anyone is interested. -- Ricky81682 (talk) 06:50, 25 June 2016 (UTC)

Request for comment on "three connotations"

I am procedurally closing this RfC. Dionysodorus (talk · contribs) wrote at WP:ANRFC, "the participants made progress in their discussions as a result of it and have subsequently continued their discussion in another section of the talkpage".

This close is without prejudice against any editor undoing this close and relisting this RfC at WP:ANRFC.

Cunard (talk) 04:11, 9 July 2016 (UTC)

The following discussion is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

---

Should we keep or remove the use of the term "three connotations" and the various internal links throughout the article? FuriouslySerene (talk) 17:19, 27 May 2016 (UTC)

• Remove as proposer. This discussion has been going on for over 3 weeks now and there has been no resolution. Hoping to get more comments on this. My point is this: there is no source at all for the use of "three connotations" or "connotation 1", "connotation 2" etc as used in this article. I believe it is WP:OR. The article presents the term common law as having three widely accepted "connotations" (or four connotations in some places) and then uses "connotation 1", "connotation 2" etc throughout the article. I've checked a number of legal dictionaries and none of them use this terminology. For example, Garner's Dictionary of Legal Usage describes "common law" in four types of usage, each of which it gives several different meanings. In the Oxford Dictionary of Law, there are 3 different meanings given, but those are not the same as the ones in here. In Webster's New World Law Dictionary, there are only two definitions given. There is no support in legal texts that there are "three connotations" to the term common law, and yet, it's presented as if this is a fact, without any attribution. Furthermore, I think the use of internal linking to these "three connotations" are contrary to the WP:MOS and are WP:OVERLINKING, all in support of this original research. To be clear, I am not saying these specific definitions are incorrect, just simply the way the information is presented is original research. FuriouslySerene (talk) 17:25, 27 May 2016 (UTC)

I added a few more footnotes, and a section Common law#Connotation 4. Informal uses among nonlawyer laypersons that explains the everyday usage, layperson's defintion of "common law" (and why that everyday defintion is wrong). I also changed the sentence that used to read "The term common law has three main connotations and several historical meanings worth mentioning" to "The term common law has three main connotations in actual usage among lawyers, an informal connotation used in everyday speech, and several historical meanings worth mentioning" I trust that that resolves your concern.98.229.147.75 (talk) 00:07, 31 May 2016 (UTC)

All of the concerns raised by FuriouslySerene are addressed in the immediately preceding discussion, including several that arise solely from careless reading by FuriouslySerene. Without some good faith attempt by FuriouslySerene to engage with the opposing view, I suggest that this RfC may be dismissed -- its sour grapes and no more. 204.9.220.36 (talk) 21:51, 27 May 2016 (UTC)

• Remove(1): I broadly agree with FuriouslySerene's reasoning: some information citing RS such as those s/he mentions should be used, and the text should avoid using invented categories or labels such as "Connotation 1...2...3..." which are not used in RS. + see further below Remove (2). Qexigator (talk) 22:01, 27 May 2016 (UTC) + 17:35, 4 June 2016 (UTC)

Qexigator -- Please explain your concern for RS? The three definitions themselves, and the existence of three (and, as the article itself notes, more than three) are footnoted, and well-supported by those footnotes -- coincidentally, they're conveniently juxtaposed in the "Three connotations" discussion at point "Third" about 100 lines above. The "Three connotations" discussion immediately above suggests that one should tread lightly with FuriouslySerene's explication of the facts, and not take them unquestioningly at face value. If you investigate and agree with FuriouslySerene, that's one thing -- but it seems much of this is a tempest in a misquotation teapot. 98.229.147.75 (talk) 01:54, 29 May 2016 (UTC)

• Comment: The three connotations of the word common law are essentially three different meanings of the term as used by lawyers and legal scholars in the countries whose systems are based on English common law. Whoever came up with the labels "connotation 1", etc., was (I assume) doing so for ease in explanation, and was not intending to imply that lawyers actually use those specific labels (we certainly don't). Maybe I need to go back and read the article more carefully, but I had not gotten the impression that the person who inserted the labels was claiming that those labels themselves carried any significance. Regarding "support in legal texts" that the three meanings are used by legal scholars: Yes, in real life, you will find the term "common law" used in the three ways described in the article. I simply do not have time to go find examples right now. In short, if we just want to avoid giving the incorrect impression that the phrases "connotation 1", "connotation 2", and "connotation 3" are actual labels used by legal scholars, then just remove the labels from the article, and describe the three different meanings of the term some other way. Famspear (talk) 01:53, 28 May 2016 (UTC)

Famspear--the issue with "removing the labels" is that throughout the article the term "common law" is used, sometimes in one sense, sometimes in another. Sometimes in multiple senses in a single sentence. Thus, when the difference matters, there's a disambiguation indicator (for example, "(connotation 1)". Perhaps the right solution is to coin a different set of disambiguation indicators. However, in my opinion, simply removing them wholesale is to elevate pendantry over clarity.98.229.147.75 (talk) 10:52, 29 May 2016 (UTC)

• retain. For essentially the reasons stated by Famspear.

In addition, note that the three definitions track several dictionaries very closely -- in his RfC, FuruouslySerene neglects to mention or comment on the definitions in the Garner dictionary and Salmond dictionaries that are cited in footnotes 12, 13, and 14 of the article. These definitions are placed immediately nest to the relevant sections of the article in Section "Third" immediately above.

FuriouslySerence writes "There is no support in legal texts that there are "three connotations" to the term common law." The article does not say there are "three and only three," the article says "The term common law has three main connotations and several historical meanings worth mentioning." There appears to be no dispute that the article is correct and supported. FuriouslySerence takes no issue with the article as it actually reads; the concern appears to arise solely out of inaccurate paraphrase.

FuriouslySerence also neglects to mention the point made in comment "Second" above -- MOS expressly permits (even encourages) internal linking for disambiguation. That's exactly what we have here. There are several places within the article where the term "common law" is used twice in a single sentence -- but with two different meanings. Without the disambiguuation, that's pretty confusing!

I join 204.9.220.36 in the preceding "Three connotations" discussion -- the basis for FuriouslySerene's concern is, at best, deeply puzzling.

98.229.147.75 (talk) 19:27, 28 May 2016 (UTC)

• Comment: this is a pretty simple matter. How is common law represented by academia? That's how it should be presented here. How do reliable law sources discuss this subject? Once that is determined, copy edit the article accordingly. As it stands, if the three connotations mentioned do not have a strong basis, i.e. are based on the article writer's interpretations, they should be removed immediately per WP:OR. If, said classification is manifested in appropriate books, journals, etc it should remain. Best, FoCuS contribs; talk to me! 12:47, 31 May 2016 (UTC)

I think that's a fair characterization -- and that's where it is (I have a couple of law professor friends, I know their thoughts on it, but I'll check with them for their feedback). I think that the existing footnotes do provide a "strong basis." However, to get well beyond any reasonable doubt, I will get the dictionaries noted above -- the online versions are abridged, so I will check a couple libraries for the paper dictionaries cited by FuriouslySerene. I will make sure that the (now four) connotations are over-footed even beyond where they are today. Give me about a week so I can get to a paper library. 98.229.147.75 (talk) 13:44, 31 May 2016 (UTC)

Agreed FoCuSandLeArN. I've checked a number of different legal dictionaries and none of them characterize it this way. I can't find any book or journal that does it this way. FuriouslySerene (talk) 15:27, 31 May 2016 (UTC)

FuriouslySerene, please specify exactly the issue that concerns you. In the https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations discussion immediately above, several times you raised an issue, someone responded to the specific issue you raised, and instead of acknowledging that your concern was not well founded, you shifted to something else. Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again. Please explain why the discussion at https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations point "Third" is insufficient to meet your concern. Please confirm that if one of the major law dictionaries give almost exactly the same set of definitions as set out here, though perhaps in somewhat different words, and perhaps slightly different order, that you will acknowledge that the article is OK.98.229.147.75 (talk) 22:30, 31 May 2016 (UTC)

Thank you both. I appreciate you willingness to investigate further. Regards, FoCuS contribs; talk to me! 17:10, 31 May 2016 (UTC)

Comment: Given that the article has a far wider context than the operations of persons participating in the legislative, judicial and executive institutions located in Washington, D.C., experienced editors will be aware that the article will be deficient if its content is not compatible with an authoritative descriptive dictionary of the English language, such as the OED, and that if some other source is cited any significant difference should be properly explained, for specialist and other readers. The IP edit[12] removed <+>the Section title "Description</+> from a recent version, <+>and relegated down from there</+> the following: In Oxford English Dictionary (1st edition 1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiasical law, and admiralty law. Citations supporting that description before Blackstone, are from the 14th and 16th centuries. For usage in the United States, supported by two citations from 19th century sources, the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them". The current OED online[13] presents: common law: 1The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1The body of English law as adopted and adapted by the different States of the US. Compare with civil law. Qexigator (talk) 18:02, 1 June 2016 (UTC) + 05:45, 2 June 2016 (UTC)

Look more closely. I didn't remove the reference to OED, I moved to a new section that "explains [the difference] for specialist and other readers", "Connotation 4. Informal uses among nonlawyer laypersons" 98.229.147.75 (talk) 02:04, 2 June 2016 (UTC)

ok, IP, fair point. There remain questions about balance, presentation, structure, and pov-ish suppositions about lawyers and "nonlawyer laypersons": in the lead, and the use of "connotation". For example, citation of any leading case using words about a threefold/fourfold connotation is conspicuously absent. Qexigator (talk) 05:45, 2 June 2016 (UTC)

Sorry Qexigator, your edits PROVE the point beyond any possible doubt -- you have no idea what you're talking about.

1. We rely on common law for "small" points of law 100 times as often as we do "leading" or "landmark" cases. Every written decision of every court is "common law"--hundreds every day in the federal courts, tens of thousands a day in the state courts. Various decisions have different weight or jurisdictional scope, but it's all "common law."

2. Not only that, your edit to the first paragraph relates to the subject matter of the second, and your edit to the second paragraph relates to the subject matter of the first. You don't even recognize that there are two broad classes of subject matter in play here, let alone that they are distinct or what they are!

Your edits demonstrate complete unfamiliarity with the subject matter. I asked you before whet jurisdiction you're admitted to practice, and you haven't answered that -- it's time to concede that you're way out of your depth. You're not moving the ball. At least not forward. Very nearly every one of your recent edits introduced error or nonidiomatic language -- I carefully went through your enitre recent edit history and reintegrated the ones that were at least neutral, not outright wrong.

You made an important contribution, "Connotation 4. Informal uses among nonlawyer laypersons". Give yourself a pat on the back for that, and then leave the rest of the article, which discusses things with a lawyer's precision, alone.

I notice that you cited no source whatsoever for your additions relating to “leading” or “landmark” cases. Thank you for demonstrating the standard you expect for “reliable sources.” I trust that you will apply that same standard to the rest of the article. After all, application of a double standard would mark someone as a disingenuous troll. I am perfectly comfortable attributing your erroneous edits thus far to good faith, arising because you’re a nonspecialist layperson. But application of a double standard would demonstrate bad faith. Let’s not go there, OK?

I'm not going to tell you to butt out totally, but I do urge that you propose any changes here on the talk page first. Sometimes the most important contribution one can give a project is to recognize one's own weaknesses.

98.229.147.75 (talk) 11:54, 2 June 2016 (UTC)

• Request. I can answer Qexigator's query for "Citation of any leading case using words about a threefold/fourfold connotation" as soon as I get from FuriouslySerene (and from Qexigator if he wishes) answers to the following questions -- I can't keep spending time chasing shape-changing --
  • Please specify your issue exactly, so it can be cleared up once and for all. Please promise that you won't shift ground again.
  • Please confirm that the sentence we're talking about is "The term common law has three main connotations in actual usage among lawyers, an informal connotation used in everyday speech, and several historical meanings worth mentioning" and that this sentence does not say "There are three and only three connotations" or anything like that.
  • Please confirm that you will not complain about your own misquotation of the article. As one example, please confirm that you recognize that the article uses the word "connotation," shades of meaning for a single concept, in this case, depending on what's being contrasted. Please confirm that you will be scrupulous and precise about the issues you raise.
  • Please explain why the discussion at https://en.wikipedia.org/wiki/Talk:Common_law#Three%20connotations point "Third" is insufficient to meet your concern.
  • Please confirm that if one of the major law dictionaries give almost exactly the same set of definitions as set out in the article, though perhaps in slightly different words, and perhaps slightly different order (for example, if items 1 and 2 are the same, and the differences in order are lower down), that you will acknowledge that the article is OK, and we can put this to bed.
  • Acknowledge that it needn't be a "case" that shows the connotations; rather, any "reliable source" or combination of "reliable soruces>"
  • (I point out, again, that it certainly appears that all the issues raised by the two questioners in this RfC seem to arise from careless misquotation, careless reading, or simple lack of familiarity with the subject matter. Qexigator's call for a "leading case" as the only "reliable source" is pretty brazen -- after that, all further readers of this RfC discussion should take Qexigator with a large grain of salt.)

98.229.147.75 (talk) 12:12, 2 June 2016 (UTC)

For the information of anyone who is inclined to give credence to the IP's remarks: I am fully conversant with the nature, history and practice of the common law, and can readily see through the IP's attempts to hector and traduce those who are disinclined to regard the IP's pov (expressed in comments on this page) as a satisfactory basis for editing the article. The IP can be seen to be prone to misrepresent, whether intentionally or not, as if indulging in questionable advocacy, possibly because the IP is well out of his depth (it certainly looks like it), and would do well to pay heed to the counsel Sometimes the most important contribution one can give a project is to recognize one's own weaknesses. It is practically impossible to see how, AGF, the above comment, "citation of any leading case using words about a threefold/fourfold connotation is conspicuously absent", could be read as Qexigator's call for a "leading case" as the only "reliable source". Qexigator (talk) 14:48, 2 June 2016 (UTC)

• Answer. Black's Law Dictionary (10th ed.) gives four definitions. (Black's is head-and-shoulders the dominant legal dictionary in use by legal professionals. I have 7th ed on my desk, I wanted to get to a library to confirm with most-recent, 10th ed.) Guess what. The four definitions in Black's track the four connotations in the article. One-for-one, and very nearly word-for-word. I've added the four definitions from Black's as footnotes.

Notably, Black's does not include a definition corresponding to the imprecise, layman's definition raised by Qexigator. So I think it's important to include a discussion of the layman's definition, but to explain that it is only a layman's definition, and not helpful in understanding the term with any precision or accuracy.

I trust that puts the issue to bed.

98.229.147.75 (talk) 09:37, 3 June 2016 (UTC)

Does anyone understand what this IP is going on about by writing "a definition corresponding to the imprecise, layman's definition raised by Qexigator"? or the curious concern with "layman" as if an inferior species as a member of this article's readership? Qexigator (talk) 19:15, 3 June 2016 (UTC)

The answer to your question is simple -- because two days ago you asked. In this very section of this very Talk page. "the article will be deficient if its content is not compatible with an authoritative descriptive dictionary of the English language, such as the OED, and that if some other source is cited any significant difference should be properly explained, for specialist and other readers." You proposed adding the OED defintion and edited it in--all I did was agree with you that it's important to include, and that it has to be explained "properly."

I just double checked; I have never said anything about "laymen" as people, let alone members of the audience. My comments have been scrupulously confined to a "layman's definition."

The reason it matters is because every once in a while I have a case where one of the other parties is pro se (a non-lawyer representing him/herself). These are almost always really painful affairs -- when one party doesn't know the rules, everything screws up. If you've ever been square dancing when one member of the square doesn't know the calls -- same kind of constant snafu.

One of the recurring and common mistakes that pro se's make is to rely on the layman's definition of "common law." These poor folks get sanctioned, or lose winnable cases, through simple ignorance.

My goal is to see that this article is correct and educational. If it can steer a couple of pro se's away from relying on bogosity, then it's worth the time I've put into keeping the article strictly accurate. Your comments made it clear that it's not only important to be correct internally, but also to clearly warn against bogosity that's out there in the world so that people don't step in it. It matters to me because I hate seeing people hurt by trying to rely on the layman's definition in contexts where accuracy matters.

98.229.147.75 (talk) 19:57, 3 June 2016 (UTC)

Noted.[14] Qexigator (talk) 06:31, 5 June 2016 (UTC)

• Further comment: While some recent IP edits may be seen by others as at least out of place or inept[15] they have drawn attention to a long-standing weakness in the article: the way "connotation" was being used to arrange the article content, well before IP's well-meant intervention. An early version of the wording appeared as long ago as January 2006:[16] "There are three important connotations to the term", and "connotation" has survived the multitude of later revisions the article has attracted. The enumeration began in October 2006.[17]. While it was always questionable, and was touched on in some of the earlier discussions on this page (long before the IP edits which are under discussion in this RfC), it was tolerably acceptable as an editorial device ("scaffolding"), to let the article on this complex topic be constructed, and, as such, was retained in recent revisions (2 June) at[18] But it was always open to objections such as have now been raised, and have become more acute as a result of the recent interventions of the IP. I have formulated a proposal, set out for discussion below. Qexigator (talk) 11:37, 4 June 2016 (UTC)

• Remove (2): If the first of Black's descriptions (quoted below) is adopted as the primary connotation, it can be restated as

"the body of law and juristic theory which was originated, developed, and formulated and is administered in England, as distinct from law created by the enactment of legislatures, equity law, and ecclesiastical law. In the United States, "common law" refers to the portion of the common law of England that had been adopted and was in force at the time of the Revolution (including such acts of parliament as were then applicable), and forms part of the law of most of the states of the Union, while federal common law is a body of decisional law developed by the US federal courts untrammeled by state court decisions.";

and, if the article is looked at afresh, it can be seen that with tweaks to the text here and there (and removing verbiage) the intrusive labels Connotation 1-5 (in the current version) are better left out.

+ Or perhaps more simply use the current OED online wording:[19] common law: 1 The part of English law that is derived from custom and judicial precedent rather than statutes. Compare with case law, statute law. 1.1 The body of English law as adopted and adapted by the different States of the US. Compare with civil law.

Qexigator (talk) 17:11, 4 June 2016 (UTC) + 17:20, 4 June 2016 (UTC)

Remove scaffolding

The Rfc opened at 17:19, 27 May 2016 (UTC), about use of the term "three connotations" and the various internal links throughout the article. To see how the article might look if some of this was edited out see "Connotation" section at 17:24, 30 May 2016 [20].(Other parts of the article have changed since then to make up the current version). What would the section look like if we could do without "Connotation" headings altogether? In view of the comments here, let us consider going further and looking at the section in that version (of 10:47, 30 May), and reproducing it without the recurrent Connotation headings:

Connotation

The connotation of the term common law varies according to context.

In some contexts "common law" is used to distinguish the authority that promulgated a law. For example, much of the law in most Anglo-American jurisdictions is "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, as distinct from the common law or "case law", that is, decisions issued by authoritative courts (or quasi-judicial tribunals within agencies). This can be further differentiated into

• (a) pure common law: arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts.
• (b) interstitial common law: court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called "interstitial common law," includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.

In other contexts, "common law" is used to diffentiate a jurisdiction or legal system from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes—for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute. Judicial precedent is given less interpretive weight, which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably, whereas scholarly literature is given more weight than in common law systems. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.

As a rule of thumb, common law systems trace their history to England, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. The contrast between common law and civil law systems is elaborated below.

In some contexts "common law" (or "law") is differentiated from "equity". Before 1873, England had two parallel court systems: courts of "law" which could only award money damages and recognized only the legal owner of property, and courts of "equity" (courts of chancery) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes", below). For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. Additionally, even before the separate courts were merged, most courts were permitted to apply both common law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following:

• categorizing and prioritizing rights to property—for example, the same article of property often has a "legal title" and an "equitable title," and these two groups of ownership rights may be held by different people.
• in the United States, determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim) or whether the issue will be decided by a judge (issues of what the law is, and all issues relating to equity).
• the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review (issues of law are reviewed de novo, that is, "as if new" from scratch by the appellate tribunal, while most issues of equity are reviewed for "abuse of discretion," that is, with great deference to the tribunal below).
• the remedies available and rules of procedure to be applied.

Courts of equity rely on common law principles of binding precedent.

drafting note: what follows may be better merged with History section

see[21]Qexigator (talk) 16:58, 7 June 2016 (UTC)

In one archaic usage, "common law" refers to the pre-Christian system of law, imported by the Saxons to England, and dating to before the Norman conquest, and before there was any consistent law to be applied. This definition is found or alluded to in some internet dictionaries.

Today's use of "common law" as opposed to statutory law and regulatory law contrasts with ius commune. While historically the ius commune became a secure point of reference in continental European legal systems, in England it was not a point of reference at all.

The English Court of Common Pleas dealt with lawsuits in which the Monarch had no interest, i.e., between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions.

END of proposed version

Perhaps the end paragraphs would be better merged with the History section.

Qexigator (talk) 18:31, 6 June 2016 (UTC)

I've been away for a week. I am utterly flabbergasted at what's happened.

Qexigaotr's removal of the cites to Black's Tenth that were recently added -- that's outright vandalism.

204.9.220.36 (talk) 23:14, 6 June 2016 (UTC)

Oppose. These are my three questions.

Those with any experience in such matters know that it's simply pointless to base an argument on an everyday dictionary for the meaning of a specialized term. In any legal proceeding, everyday dictionaries are not considered "reliable sources" when they conflict with specialized dictionaries from the specialized field. Do you have any basis to believe that that rule should not control here?

Likewise, in the law, when a source publishes a later version of a document that replaces an earlier version, the later version controls, and the earlier version is no longer a reliable source (except as a historical record). Do you have any basis to believe that that rule should not control here?

Why remove the cites to Black's mosst current edition, other than that you disagree?

98.229.147.75 (talk) 02:21, 7 June 2016 (UTC)

This IP's untruth noted: see reflist no. 4. Qexigator (talk) 17:17, 7 June 2016 (UTC)

Black's Law Dictionary, 10th Ed.

common law, n. [fr. Law French commen.ley "common law"] (14c)

1. The body of law derived from judicial decisions, rather than from statutes or constitutions; CASELAW <federal common law;>. Cf. STATUTORY LAW.

federal common law. (1855) The bod}"of decisional law derived from federa1 courts when adjudicating· federal questions and othet matters of federal concern, such as disputes between the states and foreign relations, but excluding all cases governed by state law. An example is the nonstatutory law applying to interstate streams of commerce.

2. The body of law based on the English legal system, as distinct from a Civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies <all states except Louisiana have the common law as their legal system>. Cf. CIVIL LAW(1).

3. General law common to a country as a whole, as opposed to special law that has only local application <the issue is whether the common law trumps our jurisdiction's local rules>. Also termed jus commune.

4. The body of law deriving from law courts as opposed to those sitting in equity <a mortgage founded in common law>. The common law of England was one of the three main historical sources of.English law. The other two were legislation and equity. The common law evolved from custom and was the body of law created by and administered by the king's courts. Equity developed to overcome the occasional rigidity and unfairness of the c6tnmon law. Originally the king himself granted or denied petitions in equity; later the task fell to the chancellor, and later still, to the Court of Chancery.

Interesting. All four definitions in Black's are "the body of law ..." A "system" does not even appear as a primary definition.

The article has been redirected from points of primary importance to secondary.

98.229.147.75 (talk) 22:27, 30 June 2016 (UTC)

---

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

American focussed

The Common Law is the English Common law. So why is the article written almost entirely from an American perspective?Royalcourtier (talk) 21:41, 19 August 2016 (UTC)

It's a problem I agree. If you read some of the talk page above you'll see a lot of the article was written by an American lawyer who didn't really grasp the whole global concept of the term. You can definitely help out with that. FuriouslySerene (talk) 22:51, 19 August 2016 (UTC)

Common law is not a legal system. It is a parallel judicial system to the legal system. Nearly every court in the United States, (all state courts, circuit courts, county courts, and all federal courts) are courts of record except a minuscule handful of municipal courts.

A court of record has the power to fine or imprison for contempt. It proceeds under the common law, not a statute or a code. A court that proceeds using statutes and codes is called a legislative, inferior court. A court that proceeds under common law is called a superior judicial court, and can collaterally sue an inferior court and void its orders. By ordinary proceedings are understood the regular and usual mode of carrying on, a suit by due course at common law. Special proceeding is a generic term for all proceedings in courts of justice which are not ordinary actions. When you receive a summons for a civil or criminal matter and appear, you find the court of record proceeds with statutes and codes instead of under the rules of common law because the court presumes (without proof) and assumes (acts under the presumption) you are under its jurisdiction, and uses various methods to get you to agree to accept responsibility for the person charged in that jurisdiction. The person has a name that is spelled like your name and sounds like your name, but has a different meaning. This is called a homogram.

The fictional person who exists only on paper is not the living man or woman. But once you or the judge enters a plea of any kind, you are under the court's jurisdiction. Once you answer yes, you understand the charges, you are under the court's jurisdiction. If you declare no, I do not understand (stand under) the charges, the court cannot proceed. Jurisdiction can be challenged at any time during the proceedings, and the court cannot proceed until it proves its jurisdiction. You may require a court of record and trial by jury because you are guaranteed common law due process ( trial by jury) by the 5th and 14th amendment.

Legal and lawful do not mean the same thing. Everything Hitler did was legal, but it was not lawful.

The opening sentence in the main article is incorrect. "A common law legal system is characterized ..." Common law is not a legal system. — Preceding unsigned comment added by 2602:306:C466:F8B0:2CD4:DD7F:E4F1:7138 (talk) 17:49, 13 September 2016 (UTC)

No, sorry, that's incorrect. You've been reading gibberish on the internet. Famspear (talk) 18:08, 13 September 2016 (UTC)