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What Is a Common Law Right?

By Elise Czajkowski
Updated May 17, 2024
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A common law right exists even when no law has been passed by a legislature to establish that right. The right exists because the courts of the common law jurisdiction have recognized it. A number of rights were recognized at common law, but in the US, in 2011, the term common law is often associated with common law marriage. Common law principles also govern certain aspects of US trademark law.

The term common law refers to legal precedent that has been developed in a court system, rather than through legislative action. In a common law system, cases are decided based on past court decisions. This kind of system developed in England and has greatly influenced the legal systems of countries, including the US, which were once governed by Great Britain. Common law rights, as a general rule, do not exist outside these countries.

One of the most frequent examples of a common law right arises from common law marriage. This is the relationship that arises when a couple lives together for a certain period of time and presents themselves as a married couple, though no formal wedding ceremony occurred and no marriage certificate was obtained. In jurisdictions that recognize common law marriages, this couple would be entitled to all the rights associated with a marriage. Common law marriage is not recognized in all jurisdictions, however, and consequently, no common law right would arise out of such a relationship in these places.

Another common law right arises from the use of a trademark. Most countries have a formal process to trademark an image or symbol, known as a mark, with a government. In the US, however, the right to use a trademark can be established if the trademark has been used for a long period of time, even without having been formally registered. In these circumstances, a company may prohibit another party from using their mark by proving that the mark has been in use and is associated with the company.

Unlike a registered trademark, which has explicit protection throughout the US, a common law trademark might only be protected in the region where the mark is commonly used. For instance, a New England company could register a symbol or logo as a trademark and have the right to keep other companies throughout the US from using it. If the company has a common law trademark, however, and only sells their products within New England, another company might be able to use that logo in a different part of the US.

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Discussion Comments
By stl156 — On Dec 19, 2011

British common law is the basis of many legal systems around the world and it can be argued as being the ideal concept of basing a legal system on.

The whole basis of common law is to base decisions on past cases. You do not have to follow this tooth and nail, you are allowed flexibility to keep up with the times and make it relative, but having something to review means that there is something to back the decision that has been made.

This allows common law decisions to have the backing it needs to be considered fair and be a basis on which to base court decisions in cases such as that.

A common law system allows the courts a way to continually eliminate grey area over time and allow for legal questions to be answered that need to be addressed.

By kentuckycat — On Dec 18, 2011

The United States does not necessarily utilize a common law system. In the early days of American law there may have been a lot of emphasis based on common law, but this eventually evolved into the current system of law put into place.

However, using a concept that can be considered common law based, judges in the United States do review past cases and sometimes base their decisions on precedent, much like in the United Kingdom, to come to a decision on cases that involve a lot of grey area.

By jmc88 — On Dec 18, 2011

@matthewc23 - You are absolutely correct. English common law is considered as being the basis of United States law. Some people would argue against this point saying that the United States is their own independent legal system with their own legal history, but they based it all off of England and the entire concept of precedent and common law.

In the United States common law usually only concerns marriage, which I believe, at least in my state, that you have to live together for seven years to be considered common law married. However, in England there are still a lot that falls under the basis of common law and they still use common law and precedent to review past cases and decide on matter that are a bit hard to come to a decisions on.

By matthewc23 — On Dec 17, 2011

People do not realize how much impact common law has on most legal system. In fact, it is the basis of the entire English system of law and could be argued as being the basis for all law in the western world.

The English system of law is based upon precedent and past court cases and decisions. Based upon these decisions, they decide on many things involved in the court system such as sentence, guilt or innocence, or how much one should pay.

Since England was the center of the Western World for centuries one could argue that many countries based their system of law off of England. The United States based their system of law off of England, but eventually evolved into their own, still keeping the principles of common law and precedent as guides in cases.

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