What are common law rights?

Common law rights are the legal protections that developed over centuries through English judicial decisions rather than through statutes, and that the American colonies inherited and incorporated into their own legal systems. The common law began in England after the Norman Conquest in 1066, when royal judges traveled the country resolving disputes according to consistent principles, gradually creating a single body of law common to the entire realm. Over the following five centuries, judges built on prior decisions through the doctrine of precedent, called stare decisis, meaning to stand by things decided.

Common law was contrasted with civil law systems on the European continent, which derived from Roman law and codified statutes, and with ecclesiastical and equity courts that operated under different rules. Specific common law rights that flowed into American constitutional protection include the right to trial by jury, the writ of habeas corpus to challenge unlawful detention, the privilege against self-incrimination, the requirement of probable cause for arrests and warrants, the prohibition on double jeopardy, and the right of the accused to confront witnesses. Property rules, contract enforcement, tort remedies for personal injury, and family law also grew out of common law.

The English Bill of Rights of 1689, while a statute, codified many common law liberties and was read as confirming pre-existing rights. American colonists treated common law as their birthright. Colonial courts applied common law rules from the earliest English settlements, and lawyers trained in William Blackstone's Commentaries on the Laws of England, published from 1765 to 1769, knew common law as the operating system of legal practice.

When the Founders drafted the Constitution and Bill of Rights, many of their protections were already settled common law principles, which they elevated to constitutional status. The Seventh Amendment, for example, preserves the right to jury trial in civil cases at common law where the value in controversy exceeds twenty dollars. Common law continues to operate alongside statutes in the United States. State courts apply common law rules in tort, contract, and property cases unless the legislature has displaced them. Federal courts apply state common law in diversity cases under the rule of Erie Railroad v. Tompkins decided in 1938. The interaction between statute and common law remains a defining feature of the American legal system.