Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 14: Common law*

Geoffrey Samuel


The expression ‘common law’ has a variety of meanings, but in the context of comparative law it is usually used to denominate the legal family or tradition associated with Anglo-American legal systems. In fact care must still be taken. First, the expression ‘common law’, if translated into Latin or French, will come to mean something very different; thus ius commune or droit commun are labels that will never mean the Anglo-American legal tradition. Secondly, the common law tradition encompasses more than the legal systems of England and the United States; most of the United Kingdom Commonwealth countries have legal systems belonging to the common law family. In addition to these two ambiguities, the expression ‘common law’ is used in English law to mean different things depending on the context within which it is employed. It may mean case law as opposed to statute law; or, again, it might signify the law issuing from the common law courts rather than from the Court of Chancery (that is to say equity). Thus it must be stated at the outset that ‘common law’ for the purposes of this contribution will be taken to mean the legal tradition encompassing the legal systems of the United Kingdom (except Scotland), the United States and the Commonwealth countries. However the main emphasis will be on English law.

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