That which derives its force and authority from the universal consent and immemorial practice of the people. The body of law based on the English legal system. The general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies.
According to Blackstone, 'the judges in the several courts of justice' were to determine the existence and validity of customs or maxims that were claimed to be part of the common law. I W. Blackstone, Commentaries on the Laws of England (1765) at 69. Blackstone went on to state that 'judicial decisions are 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.' Id. The Supreme Court of the United States has also stated that common law is a product of courts disposing of cases. In Kansas v. Colorado, 206 U.S. 46, 97 (1906), the Supreme Court wrote that, 'the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes.' See also 15A Am. Jur. 2d Common Law § 1 (1976).
The late Justice Joseph W. Henry, past member and former Chief Justice of the Court for the State of Tennessee stated the message of the flexibility of the common law in more modern language in Dunn v. Palermo, 522 S.W.2d 679, 688 (Tenn.1975), as follows: The common law does not have the force of Holy Writ; it is not a last will and testament, nor is it a cadaver embalmed in perpetuity, nor is it to be treated like the sin of Judah - 'written with a pen of iron and with the point of a diamond.' Jeremiah 17:1. Former Chief Justice Frantz of Colorado, in his dissenting opinion in Tesone v. School Dist. No. Re-2, In County of Boulder, 152 Colo. 596, 384 P.2d 82 (1963), made this erudite observation on the common law: 'The common law of America is evolutionary; it is not static and immutable. It is in constant growth, going through mutations in adapting itself to changing conditions and in improving and refining doctrine. By its very nature, it seeks perfection in the achievement of justice.'
The case for modifying a common-law rule of commerce that has outlived its usefulness was well stated by Chief Justice Lemuel Shaw 150 years ago: One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. State v. Culver, 23 N.J. 495, 505 (1957).
As stated in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 [115 Cal.Rptr. 765, 525 P.2d 669], the 'vitality [of the common law] can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it.' (Id., at p. 394.)
'It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it.' Norway Plains Co. v. Boston & Me. R.R., 67 Mass. 263, 1 Gray 263, 267 (1854).
''The rules of the common law are continually changing and expanding with the progress of the society in which it prevails. It does not lag behind, but adapts itself to the conditions of the present so that the ends of justice may be reached.'' (Johnston v. 20th Century-Fox Film Corp. (1947) 82 Cal. App. 2d 796, 815 [187 P.2d 474].)
Courts have long recognized 'that the common law is susceptible of growth and adaptation to new circumstances and situations, and that courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule. . . . The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions.' Dimick v. Schiedt, 293 U.S. 474, 487 (1935), quoted with approval in Schwanke v. Garlt, 219 Wis. 367, 371, 263 N.W. 176 (1935). In Bielski v. Schulze, 16 Wis. 2d 1, 11, 114 N.W.2d 105 (1962), the court said: 'Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, a court must succumb to a rule that a judge should let others 'long dead and unaware of the problems of the age in which he lives, do his thinking for him.' Mr. Justice Douglas, Stare Decisis, 49 Columbia Law Review (1949). 735, 736.' 'The genius of the common law is its ability to adapt itself to the changing needs of society.' Moran v. Quality Aluminum Casting Co., 34 Wis. 2d 542, 551, 150 N.W.2d 137 (1967). See also State v. Esser, 16 Wis. 2d 567, 581, 115 N.W.2d 505 (1962).
'It is the tradition of common-law courts to reflect the spirit of their times and discard legal rules when they serve to impede society rather than to advance it.' Antoniewicz, 70 Wis. 2d at 855, 236 N.W.2d at 10. The doctrine is not inflexible, and therefore a court will not hesitate to abandon a rule which has resulted in injustices, whether it be criminal or civil. See Rabon, 269 N.C. at 20, 152 S.E.2d at 498. 'There is no virtue in sinning against light or in persisting in palpable error, for nothing is settled until it is settled right.' Sidney Spitzer & Co. v. Commissioners of Franklin County, 188 N.C. 30, 32, 123 S.E. 636, 638 (1924). As appropriately stated by Judge Cardozo, I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origins it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. Benjamin Cardozo, The Nature of the Judicial Process 120 (1921).
The genius of the court-created common law is its evolutionary ability 'to grow with and adapt to changing conditions of society.' Dean Pound in The Spirit of the Common Law (1921) at 182: ''The chief cause of the success of our common-law doctrine of precedents as a form of law is that it combines certainty and power of growth as no other doctrine has been able to do. Certainty is insured within reasonable limits in that the court proceeds by analogy of rules and doctrines in the traditional system and develops a principle for the cause before it according to a known technique. Growth is insured in that the limits of the principle are not fixed authoritatively once for all but are discovered gradually by a process of inclusion and exclusion as cases arise which bring out its practical workings and prove how far it may be made to do justice in its actual operation.'' [253 S.E.2d at 675]
As was stated in Duval v. Thomas, 114 So.2d 791, 795 (Fla. 1959), it is 'only when the common law is plain that we must observe it.' 'When grave doubt exists of a true common law doctrine . . . we may, exercise a 'broad discretion' taking 'into account the changes in our social and economic customs and present day conceptions of right and justice.'' A court may change the common law rule where great social upheaval dictates. Courts have in the past, with hesitation, modified the common law in justified instances, and this is as it should be. Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480 (1941), modified the common law doctrine that gave a father the superior right to the custody of a child; Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932), removed the common law exemption of a married woman from causes of action based on contract or mixed contracts in tort. In Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931), the court refused to follow the common law principle that an action for personal injuries was abated upon the death of the tortfeasor, the Court saying: 'This court has expressly recognized the principle that in specific instances certain rules which were admittedly a part of the old English common law did not become a part of the Florida common law, because contrary to our customs, institutions, or intendments of our statutes on other subjects.' (p. 784)
In Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), the court retreated from the common law and held that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior, saying: 'Tracing the rule to its ultimate progenitor we are led to the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788). 'Assuming that the immunity rule had its inception in the Men of Devon case, and most legal historians agree that it did, it should be noted that this case was decided in 1788, some twelve years after our Declaration of Independence. Be that as it may, our own feeling is that the courts should be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.' (p. 132). Gates v. Foley, 247 So.2d 40 (Fla. 1971), established the right of a wife to recover for the loss of consortium as a result of her husband's injuries. This decision receded from Ripley v. Ewell, 61 So.2d 420 (Fla.1952) and abrogated a common law principle, saying: 'It may be argued that any change in this rule should come from the Legislature. No recitation of authority is needed to indicate that this Court has not been backward in overturning unsound precedent in the area of tort law. Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.' 247 So.2d 40, p. 43.
All rules of the common law are designed for application to new conditions and circumstances as they may be developed by enlightened commercial and business intercourse and are intended to be vitalized by practical application in advanced society. The contemporary conditions must be met with contemporary standards which are realistic and better calculated to obtain justice among all of the parties involved, based upon the circumstances applying between them at the time in question.
The California Supreme Court emphasized the need for the law to keep pace with technology: Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability . . . to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices. Burrows v. Superior Court, 13 Cal. 3d 238, 529 P.2d 590, 596, 118 Cal. Rptr. 166 (Cal. 1974).
The common law concept of duty is not frozen or stagnant, but must change to reflect current social conditions and technological advances. See Reagan v. Vaughn, 804 S.W.2d 463, 465 (Tex. 1990); El Chico v. Poole, 732 S.W.2d 306, 309-10 (Tex. 1987); Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983). See also J. Hadley Edgar, Jr. & James B. Sales, 1 Texas Torts & Remedies § 1.03 (1990) (duty dependent upon 'contemporary attitudes'); William W. Kilgarlin & Sandra Sterba-Boatwright, The Recent Evolution of Duty in Texas, 28 S. Tex. L. Rev. 241, 306 (1986) ('Tort law, in general, and duty, in particular, has long been the method of allocating the risks in society. When these risks change due to advanced technology and other factors, then it is necessary for duty to change as well.'). As stated by Judge Posner, “In areas where the making of substantive rules--'legislating,' in a sense--is left to judges, it is because the experience generated by the hearing of cases is thought an adequate or even a superior substitute for the sources of information and persuasion to which legislators turn (or are turned). Common law rules and principles well up out of the judges' experience with the facts of actual cases and are honed by the experience of encountering different facts in later cases.” Todd v. Societe BIC, S.A. 9 F.3d 1216 (7th Cir. 1993)