Judges created common law by declaring immemorial customs as authoritative principles.
Evidence
The judges could not rely upon parliamentary enactments for guidance; Parliament’s emergence as a legislative body was still several centuries in the future. Nor could the judges rely much on royal edicts, for these did not extend to many of the legal problems confronting the judges. Rather, as William Blackstone observed in his famous treatise on the common law, the judges looked to a body of “unwritten law,” the common law, for guidance. In speaking of the common law as “unwritten,” Blackstone was emphasizing that the doctrines of the common law, unlike legislative enactments, “are not set down in any written statute or ordinance, but depend merely upon immemorial usage.” Common law was thus custom sanctioned by popular acceptance. Judges served as the “depositories of the law,” and their decisions served as “the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.” — G. Alan Tarr, Judicial Process and Judicial…, 133
Categorization
- DEFINE: Defines common law as unwritten custom sanctioned by popular acceptance, with judges as depositories of the law.
- XREF: Blackstone’s account of judge-made customary law connects to how judge-made policy through interpretation is the course’s central theme. — connects to: Common law originated in judge-made decisions resting on societal customs and practices. — G. Alan Tarr, Judicial Process and Judicial…, 134; Judge-made common law originated as customary unwritten law. — G. Alan Tarr, Judicial Process and Judicial…, 133; The American legal system is common law yet distinctive for judicial policymaking — G. Alan Tarr, Judicial Process and Judicial…, 213 (+3 more)
Broader Connections
- Common law originated in judge-made decisions resting on societal customs and practices.
#corroborates(0.95) — G. Alan Tarr, Judicial Process and Judicial…, 134 - Judge-made common law originated as customary unwritten law.
#expands(0.90) — G. Alan Tarr, Judicial Process and Judicial…, 133 - Treaties with chiefs made customary law the federation’s common law
#exemplifies(0.80) - The American legal system is common law yet distinctive for judicial policymaking
#expands(0.75) — G. Alan Tarr, Judicial Process and Judicial…, 213 - Judges create law when forced to choose among competing interpretations.
#qualifies(0.75) — G. Alan Tarr, Judicial Process and Judicial…, 196 - American courts embraced western miners’ customs over English common-law doctrines
#complicates(0.72) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 976