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Common Law

The purpose of this web page is to briefly introduce the concept of "common law."


Law can be described as "the rules by which we want to live," or "the rules by which we want to define our relationships and obligations relative to one another."

Just as there are three branches of government in the United States (legislative, executive, judicial), there also are three primary types of law:

  • statutes enacted by the legislature,
  • regulations promulgated by agencies of the executive branch of government, and
  • court decisions or the common law.

Restated, each branch of government produces its own type of law; the legislative branch enacts statutes; the executive branch promulgates regulations, and the judicial branch issues decisions.

This web page does not address statutes or regulations, but instead focuses on our society enhancing its understanding of how we want to relate to one another (i.e., the rules/laws by which we want to live) by trying to gain a sense of the collective thinking that emerges from the many court decisions over the centuries.

  • Although each court decision often addresses no more than several legal concepts, collectively the court decisions over the centuries describe an understanding of how we (our society) want to address certain issues or questions. This collective understanding based on the many court decisions is referred to as the common law.
  • The common law is not as well-organized as a statutory code or a compilation of regulations; instead, the common law is discerned by studying court decisions that have addressed issues in the past similar to the current question.
    • Part of the challenge of understanding the common law is identifying appropriate/relevant court decisions from among the many decisions rendered over many years by many types of courts (e.g., federal courts and state courts).
    • Another challenge in understanding the common law is that court decisions may not provide a direct answer to the current question because the issue that had to be decided in the past was slightly different. The question becomes "does the difference between the current question and the past question justify a different solution, or are the situations similar enough that the current question should be resolved in the same manner as the previous situation."
  • Another way to describe the common law is to understand that it is based on the notion of "trying to solve today's problem as much as possible by looking at how the courts have solved similar problems in the past." This consistency in decisons/solutions than provides predictability, which in turn, can be used as guides for our daily activites.

North Dakota, for example, explicitly recognizes the role of common law:

N.D.C.C. §1-01-03. Expression of law. The will of the sovereign power is expressed by: ...
7. The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law.

The concept of common law has a long history; for centuries the English legal system (which is the foundation for the American legal system) has recognized that the reasoning behind a legal decision should also be applied in subsequent cases that raise the same legal question. This practice promotes consistency and predictability within the legal system; it also poses the challenge of devising a method of recording and retrieving the courts' decisions and reasoning.

The importance that law be predictable is well understood -- when the law is predictable, individuals will know (or will be able to learn) how to conduct themselves to comply with the law, and they can be confident that a particular action, if repeated, will be treated the same way by the law each time the action is done. In Norwest Bank ND v. Christianson, 494 N.W.2d 165 (ND 1992), the concurring justice stated "The fields of commercial law, business organizations, and property law require special attention to predictability."

N.D.C.C. §1-01-05. Evidence of common law. The evidence of the common law is found in the decisions of the tribunals.

To assure consistency among court decisions, judges use the reasoning of prior court decisions to direct or influence their current decisions; that is, prior court decisions are precedence for how current legal issues will be resolved by the judicial system.

Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168 -- "[¶13] The rule of stare decisis is grounded upon the theory that when a legal principle is accepted and established rights may accrue under it, security and certainty require that the principle be recognized and followed thereafter."

Consistency among the courts is challenging because our society has many courts; for example, each geographic area (such as a county) has a court to handle issues that arise within its jurisdiction. However, technology is making it easier to record and retrieve legal information, e.g., visit the North Dakota Supreme Court web site.

Judges will cite the court opinions they rely on in making their decision. Likewise, judges, especially appellate court judges, frequently explain how their decision is similar to or different than the concept used in a prior court decision. The following excerpt from a North Dakota Supreme Court decision provides an example of the court comparing its current decision to earlier decisions.

Aamodt v. N.D. Department of Transportation, 2004 ND 134, 682 N.W.2d 308 -- "The statutory provision [in this case] requiring reasonable grounds, like the statutory provision in Bosch concerning test results, involves requirements that are material to the Department's decision to suspend a person's driving privileges and are predicates to the Department's acting. [¶24] Unlike in Schwind and Samdahl, requiring compliance by the officer and the Department in this case does not produce an absurd result in light of the legislature's intent."

Over time, a legal concept or trend will emerge from a series of related court decisions. By studying related court decisions, a student (lawyer, judge) will recognize these trends in the collective wisdom of the justices and court decisions and thus, the common law becomes apparent. For example, the judicial guidelines for dividing property in North Dakota between a divorcing couple has evolved over the decades.

Northrop v. Northrop, 2001 ND 31, 622 N.W.2d 219 -- "[¶9] In determining an equitable distribution of the property, a trial court must consider the Ruff-Fischer guidelines. Ruff v. Ruff, 52 N.W.2d 107 (N.D. 1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966)."

Accordingly, one part of studying law is to critically analyze court decisions and how they relate to similar cases. For topics that have not been addressed by the legislature, studying the common law is the only way to understand those legal concepts.

The common law is constantly being refined as present-day decisions clarify legal issues that have not been addressed in prior decisions.

The common law also changes when the legislature enacts a statute to address an issue that had previously been developed as part of the common law. In that case, the newly enacted statute will take precedence over the common law (court decisions).

N.D.C.C. §1-01-06. Code excludes common law. In this state there is no common law in any case where the law is declared by the code.

The corollary is if a legal issue arises that has not been addressed by the legislature, the court has no alternative but to devise a solution which will then become part of the common law.

In summary, our legal system relies on court decisions as one of its source of the law.

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