What is Common Law?
Common law generally refers to the body of unwritten laws based on legal precedents established by the courts. It is a legal system that was originally developed in England and subsequently adopted in many countries around the world, including the United States of America. Common law systems are contrasted with civil law systems, where laws are achieved by legislatures through statutes and regulations. Civil law jurisdictions have legal codes that are intended to cover all matters capable of being brought before a court, whereas common law jurisdictions depend significantly on case law in which the outcomes of previous cases are cited as precedents for current matters before the court . The United States is a confederation of states, each of which has its own identity and legal system. As a result, there is no unified American common law, and the country as a whole does not have active stare decisis. Instead, each state has its own common law (or lacks common law entirely) which may or not be allowed to adopt precedent-setting decisions from sister states. The Massachusetts Commonwealth is one of the states that follows the common law tradition.
Common and Civil Law
Common law vs civil law in Massachusetts
Within the United States, the legal system differs in several regards. The civil law system differs from the common law system in that laws are typically written down and codified into a source so that all persons are aware of them. The common law, on the other hand, consists of precedent and interpretations of cases that have already been brought before the court. In the United States, the Uniform Commercial Code (UCC) and the Internal Revenue Code (IRC) serve as two codifications of civil law. However, Massachusetts, like the rest of the U.S., is primarily a common law state.
The common law system makes laws through adjudication, which means that statutes and rules of a court are not necessarily written down anywhere. Therefore, precedent is often persuasive. When courts make adjudications about laws, the decisions do not necessarily become law, but they can be used to guide judges on future decisions. As a result, similar cases are treated similarly, which promotes uniformity and fairness in the justice system.
In most European countries, the law systems are codified into books of law. These sets of laws define clear punishments, rules and regulations in the legal system. One code in civil law serves as a definitive guide on how the law should be practiced. Civil law is codified into a written document, which means that it is generally available to the public.
For example, contracts are generally not enforceable if they are not in writing, but in a common law system, contracts may still be enforceable in some circumstances, but the court may refuse to enforce them simply because they were not in writing. With civil law, the law is written down and followed based on those writings. This means that even though contracts are in practice enforced, a party with more experience may take advantage of the other’s inexperience and include language that would render the contract unenforceable. With civil law, contracts must be in writing and signed by the parties in order to be enforceable. California, Louisiana, and Texas are some states in the United States that utilize civil law.
Massachusetts’s Common Law System
Massachusetts has been a "common law" state since its inception. Black’s Law Dictionary as well as the Commonwealth’s own Supreme Judicial Court have both defined a "common law" state as "a state recognizing the common law of England as the basis of legal precedents." However, the term "common law" has become something of a misnomer because it has been superseded by statutory law. According to the Massachusetts Legislature, "common law" is only applicable in areas where there are no statutes.
The Legislature maintains that, as a result of the adoption of the Uniform Commercial Code, other Massachusetts General Laws, and a large volume of case law, "common law" is now limited to cases that deal with common law contracts, common law torts, and an exception for medical malpractice claims where there is a dispute regarding the interpretation of the statute of limitations. The Legislature says that "these three areas have not been changed by statute, and remain the same as they were at the time of our founding."
In Dolan v. Freedom of American & Uni, 786 N.E.2d 185 (Mass. App. Ct. 2003), the Appeals Court explained the current state of "common law" by referencing to a 1951 U.S. Supreme Court case, United States v. Little Lake Misere Land Co., 412 U.S. 580, 597 (1953)("It is a general principle of statutory construction that Congress intends statutory provisions to have full effect: The fact that some remnants of the old statutory scheme remain in effect does not warrant interpreting the more recent statute as limited to those remnants.") The Appeals Court noted that, "demonstrating the difficulty in determining what ‘common law’ means in today’s context the answer should not be understated. There has been so much codification over the last century, and the number of decisions based upon what little remains, that [Commonwealth v. Stow] certainly seems in accordance with sound public policy."
How Common Law Functions in Massachusetts
The application of common law throughout Massachusetts may vary depending on the context. Generally speaking, Massachusetts courts apply common law as it stands where there is no statutory law on a particular matter. However, case decisions may also be used to develop Massachusetts common law. For example, the Appellate Court has the responsibility to review lower courts’ decisions, and in doing so provides more guidance on applying certain statutory laws. These questions are determined with the expectation that those who litigate cases in Massachusetts will know to read and understand the common law as well as the statutory law in order to predict, or at least understand, how courts may decide a matter.
Using the example of a case where a plaintiff alleges a tort of negligence (a civil wrong that causes harm through negligence), Massachusetts courts look to statutes as well as the common law in order to provide a legal basis for their decisions. Tort laws are frequently based in common law. For instance, a duty of care may be established through statutes; however, what constitutes a breach of the duty of care is often determined through common law. A court may consider each plaintiff’s "Duty of Care" to have been breached by the defendant. A breach of this duty is sufficient to hold the defendant liable in negligence.
There are many instances where statutes are subject to Massachusetts common law, which seeks to alleviate or limit the harshness of a statute. For instance, the Massachusetts parental liability statute required parents to be held strictly liable for their children’s torts, meaning a parent could be liable for payment of damages awarded to a plaintiff regardless of whether or not the parent did anything wrong. The Massachusetts Supreme Judicial Court Limited liability by imposing a standard care component (i.e., requiring that a parent exercise reasonable control over minor children to prevent disorderly conduct resulting in damages to others).
Effects on MA Residents and Businesses
The impact of common law in Massachusetts is significant for both individual residents and businesses. On an individual level, the flexibility of common law provides a framework for a variety of legal claims, allowing citizens to pursue justice and seek compensation for personal injuries, property damage, or violations of their rights. This adaptability can be particularly beneficial in a rapidly changing society where new issues continue to emerge. However, individual disputes can be costly and time-consuming to resolve in a court system that relies on litigation and adversarial proceedings to settle matters.
For businesses, the common law system offers a similar combination of advantages and challenges. On the one hand, the relative fluidity of common law allows businesses to adapt to changing commercial realities by creating innovative contracts, partnerships, or corporate structures that best meet their needs. Contracts, property agreements, and the rights of shareholders can be crafted to provide businesses with the necessary flexibility to thrive in a competitive economy. Conversely, the absence of a codified set of business laws means that companies must constantly navigate the broader uncertainties of a common law landscape that may differ from state to state, and sometimes from one court decision to another.
One significant challenge faced by both residents and businesses is the legal uncertainty that arises from the tendency for common law to evolve through case-by-case decisions. Unlike other states that rely heavily on statutes and codification, Massachusetts parties can find themselves in uncharted territory when faced with a new issue that has not yet been addressed by the state’s courts. In these cases, parties may need to engage in costly litigation to achieve clarity on the law governing their rights and obligations . While innovations in conflict resolution methods and risk management strategies can often mitigate these effects, the potential for a drawn-out court battle still exists.
Another challenge is the potential disparity between common law and state statutes. While state legislatures often enact laws that govern issues in a relatively predictable and well-articulated way, the common law may dictate different requirements or standards for parties who are trying to resolve substantive disputes. In this way, changing a state statute may not accomplish what lawmakers originally intended. Further complicating matters, courts often have the discretion to apply equitable remedies, or remedies derived not from traditional damages, to provide parties with the relief they seek when damages alone fail to meet the purposes of the law.
The flexibility of Massachusetts common law can also lead to benefits for residents and businesses. Parties are often able to foresee and create contracts or agreements that address real-world concerns before they pose a threat to their interests. Many sources of potential conflict can be avoided altogether if parties can adequately anticipate their needs and adequately provide for their resolution in advance. Further, the ability to apply equitable doctrines can help parties ensure optimal results when necessary.
The legacy of common law in Massachusetts leaves the state with a global reputation as a legal leader. As a result, residents and businesses benefit from the status of their laws as well as the predictability of the state’s evolving legal perspective. A long tradition of respect for consistency and fairness has established much of Massachusetts common law into a reasonably stable and consistent body of precedent that provides an effective guide as parties navigate potential disputes. Arguably that reputation is a fundamental aspect of the asset the Commonwealth is attempting to maintain – specifically its status as the headquarters of the American judicial system.
Key Common Law Influences in MA
Non-lawyers may not immediately see the connection between a common law state like Massachusetts and dog law. The original settlers of Massachusetts in the 1600s, however, brought common law principles with them from England, and these legal precedents are still followed today.
The most notable example of this is MOORES v. MOORES (85 Mass 1, 1879), in which the SJC held that there is no actionable tort for killing somebody’s dog. The defendant shot and killed the plaintiff’s dog while it was chasing sheep on his land, and the plaintiff brought a lawsuit against him for damages. The court held that, given the strict rule of caveat emptor in Massachusetts, the offense was a criminal one under section 14 of the Animal Control Act when the offense occurs in Massachusetts.
Although this particular ruling does not bring us closer to being able to sue people for dog attacks, it helps to show how common law can influence the law in Massachusetts.
Another influential case is CHRISTINA C. v. MATHES (337 Mass 410, 1958). As the court notes, "whether a certain act performed is a tort or a crime has been a very difficult problem in the law." The court came to the conclusion that a certain act could be both a tort and a crime, and that the law should interpret a crime as tortious in civil proceedings. So the result of this case is that even though you may not be able to sue for killing someone’s dog, causing a legitimate harm to a dog is still a criminal offense.
This addresses barking or other noise problems too. Even though there is no evidence that a court case has ever been taken for noise complaints, it is still criminal offense to keep a loud dog. In BONAVO v. MAGIC (425 Mass 700, 1997), the court upheld a trial court’s decision to find a dog owner guilty of violating two city ordinances by keeping a dog that frequently barked and howled.
As you can see, even the most unlikely issues can find their roots in old common law decisions, and many of the rulings we make today in the courts come directly from decisions made hundreds of years ago.
The Future of Common Law in MA
Future developments that could further the course of evolution of the common law in Massachusetts include the codification of existing law. There are ongoing legislative efforts to revise and codify the Massachusetts testamentary additions doctrine. Two other areas of enforcement of foreign judgments and evidentiary privileges will likely come before the courts in the near future. In addition, the trend towards greater uniformity of statutes and case law with other states has emerged.
Codification of existing common law can be accomplished through caselaw or legislative enactments. Though the Massachusetts statutes have been codified so that the statutes, generally, are numbered in a consistent and logical fashion, the law remains a combination of statutes and cases decided according to the common law. Codification does not eliminate the common law but seeks to add consistency to the law in this state. When the Legislature saw the need for full codification, they did so by expressing the desire to do so for the purpose of declaring the law and establishing a complete and comprehensive system of positive law. Codification does not take away the common law in Massachusetts, it enhances it and brings it more in line with the modern practice of law.
Examples of when the courts chose to codify the law by case law include the Massachusetts rules of civil procedure and the Massachusetts statutory rules of evidence . When it becomes apparent that a prior decision no longer serves if any useful purpose, the Supreme Judicial Court has the option to remove it from the books or to modify it by crafting a rule of general practice to govern a particular area of the law. This, however, occurs for the most part, only because the Legislature has stepped in to declare the law to be in a manner different than the Massachusetts Supreme Court expressed it in the caselaw.
Legislative enactments have taken the place of the common law in the following areas in Massachusetts: the Finger Act, the double jeopardy law and the law of privileges: the attorney-client (Cahill v. First National Bank of Boston), and the physician-patient privileges (Woods v. General Motors Corp.). The Massachusetts Bramblett court determined that the Massachusetts common law rule that required an exclusion of evidence of a victim’s post-death surgical history and medical treatment if such establishing were the result of alleged medical malpractice, was unworkable. Therefore, the panel recommended and summarized the criteria to be used in determining the admissibility of such evidence. The general statute governing privileges in Massachusetts (M.G.L. c. 233, s. 20B) was revised to permit the admission of such evidence of a victim’s post-death medical history and the court’s ruling in Bramblett is consistent with the policy behind M.G.L. c. 233, s. 20B, to encourage an equitable resolution of wrongful death actions.