What Are Common Law and Precedent

Practical information: This article provides general legal information. Advice about your circumstances requires a consultation.

Imagine a time when there was no modern courthouse down the road, no searchable municipal code, and no statute addressing every detail of a dispute. Someone took your property. A neighbor interfered with your land. A promise was broken. How did you obtain a remedy?

People had disputes long before they had our institutions for resolving them. The history of common law helps explain why an attorney may answer your question with a court decision rather than a section of the statute book.

The whale that belonged to someone else

In 1880, a Cape Cod whaler killed a finback whale with a marked bomb-lance. The whale sank. That was expected: these whales could take one to three days to rise to the surface.

The trade had an established custom. The whaler who killed the whale owned it, and the mark on the lance identified the crew. A finder ordinarily notified the whalers and received a salvage payment.

Instead, the finder sold this whale at auction. The buyer, Rich, processed its blubber into oil. The whaler, Ghen, sued. In Ghen v. Rich, decided in 1881, the federal court in Massachusetts upheld the custom. The whaler had done what was practicable to take the animal; letting a finder claim it would undermine the trade.

The court awarded $71.05, calculated from the oil’s market value less processing costs, with interest. It was a civil determination of ownership and compensation, not a criminal theft conviction. [1]

Custom mattered but the judge still had to decide

The lesson is not that every tradition becomes law. The court examined this particular custom, its limited application, and its relationship to established property principles.

Ghen was an admiralty case decided in an existing court. Its importance here is that the court could resolve an ownership dispute without a special statute addressing this exact situation. Established property principles and a reasonable trade custom supplied the answer.

That distinction is useful. “There is no statute saying that” does not necessarily end a legal inquiry. But “we have always done it this way” does not automatically establish an enforceable right either.

Before the modern courthouse

Different societies used different institutions to resolve disputes. Even within England, the development of royal justice did not begin with a courthouse in every town. Local institutions and customs existed before a more unified system of royal courts.

During the twelfth century, Henry II expanded the use of judges who traveled circuits to decide cases. The development of rules applied across the country helped give English common law its name: law common to the realm rather than a collection of different local practices. [2]

Earlier procedures included trial by ordeal and combat. Institutions changed over centuries, and access to justice was hardly equal. Over time, decisions helped establish rules that could guide later disputes.

What common law means

Common law generally means legal principles developed through judicial decisions, drawing on earlier decisions and established legal reasoning. Much of the law governing contracts, property, negligence, and other civil wrongs has roots in that tradition.

Calling it “unwritten law” can be misleading. Opinions explaining it are written and published. The distinction is principally how the rule developed: through decisions in cases rather than an enactment by a legislature.

Judges do not have unlimited authority to invent whatever result feels fair. They must consider controlling decisions, constitutional limits, and applicable legislation. Courts can develop rules where the law permits, but they cannot simply disregard a governing statute because an older common-law rule would produce a preferred result.

Common law also does not mean whatever the community considers common sense. A popular opinion and a legally recognized rule are different things.

Precedent is how earlier decisions guide later cases

A precedent is an earlier decision relevant to a later legal question. Lawyers examine both the rule the court applied and the facts that made that rule relevant.

Some precedent is binding: a court must follow it within the applicable judicial hierarchy. Other decisions are persuasive: they may help the court reason through a question without controlling the result. In Florida, the Supreme Court has explained that district court of appeal decisions bind trial courts in the absence of conflict between districts; a trial court follows its own district’s decision when that district has ruled on the issue. [3]

That does not make every sentence in an opinion binding law. The holding is the legal determination necessary to resolve the issue. Additional observations, often called dicta, may have a different weight.

A lawyer may distinguish a precedent by showing that the legally important facts differ. A higher court may also overrule an earlier decision, and legislation can change the rule for future cases, subject to constitutional limits. Consistency matters, but precedent does not freeze the law forever.

Florida still recognizes common law

Florida did not discard this tradition when it became a state. Section 2.01, Florida Statutes, adopts the general English common law and certain English statutes through July 4, 1776, insofar as they are consistent with applicable federal and Florida law. [4]

That historical starting point does not mean Florida law stopped developing in 1776. Florida courts have continued to decide cases, interpret legislation, and develop common-law principles within their authority.

When an attorney researches your dispute, the answer may therefore require several sources: a statute, the decisions interpreting it, a common-law rule the statute leaves intact, and perhaps a local ordinance.

How statutes and ordinances fit

Common law does not automatically turn into a statute or ordinance. Legislators may adopt an existing principle, clarify it, change it, or create a different remedy. Local governments enact ordinances under the authority available to them. Those enactments must comply with constitutional limits and applicable state and federal law.

Consider three Florida examples.

Land access. Section 704.01 expressly recognizes, adopts, and clarifies the common-law rule of an implied way of necessity when land is divided in circumstances meeting its requirements. It separately provides a statutory way of necessity with different conditions. The statute shows both recognition of an older rule and creation of an additional legal route. [5]

Dog bites. Section 767.04 generally imposes liability on a dog’s owner when the dog bites someone in a public place or lawfully on private property, regardless of the owner’s prior knowledge of viciousness. Conditions and defenses matter, and the statute expressly preserves additional remedies under statute or common law. You cannot assume the owner receives a legally free first bite. [6]

Neighborhood noise. Common-law nuisance addresses certain unreasonable interferences with the use and enjoyment of property. Modern local regulation also addresses noise. Tampa’s ordinances establish specific standards and enforcement procedures, including different provisions for particular districts. An ordinance violation and a civil nuisance claim are distinct inquiries; one does not automatically prove the other. The two forms of law can address the same problem through different remedies. [7]

The statute book is only part of the answer

The whale case remains memorable because the practical problem is easy to understand. A whaler could not hold a sinking whale in his hands. The court had to decide whether the established way of identifying ownership deserved legal recognition.

Modern disputes often require the same discipline: identify the facts, locate the governing rule, and determine how it applies. Sometimes the answer comes from legislation. Sometimes it comes from precedent. Often it requires both.

Before concluding that you have no remedy because you cannot find a statute with your exact situation in it, have the legal question examined. And before assuming a familiar custom guarantees your rights, ask whether the law actually recognizes it.

If you have a contract, property, or business dispute in Hillsborough County or the surrounding area, contact Kornitzer Law to discuss the facts and your options.

This article provides general historical and legal information, principally concerning the English common-law tradition and Florida law. The governing law and facts determine the outcome of any particular dispute.