was punished by ecclesiastical courts in England. The common law courts never punished these activities as 
criminal, and thus, they never became English common law crimes. 
At the same time that judges were developing new crimes, they were also developing new common law 
defenses to crime, such as self-defense, insanity, infancy, and coercion. … 
About the middle of the nineteenth century, the process of creating new crimes almost came to a standstill 
in England. ” 
2 
American courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes 
that 
“as the number of American decisions grew, the American courts began to rely more and more on 
their own decisions. At the same times, differences in social and economic conditions (and to some extent, 
differences in the personalities of the judges) led the courts in different states to take different views of 
the common law. As a result, while the English tradition produced a core of similarity, there developed 
significant differences in common law rules in the various states. Thus, the common law standard governing 
an officer’s authority to arrest for minor crimes might be substantially different in Ohio and New York, 
although the general framework of the common law governing arrests was likely to be similar in both 
states.” 
3 
In order to understand the limitations of common law, it is helpful to understand the difference between 
the common law tradition followed by the United States, and other nations that follow the English model 
and the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the 
primary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements, 
old substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of 
legislative codes, and all courts are free to interpret the codes according to generally accepted principles 
of legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law 
tradition. Under the common law tradition though, new substantive law generally adds to, rather than 
replaces, old substantive law. 
Kerper notes that our common law tradition is not purely one of common law, and that common law is 
displaced by statutes, case law, and the constitution. 
“Though the description of the Anglo-American system as a “common law legal system” notes an 
important distinction between it and the civil law system, that description should not lead one to ignore the 
fact that legislation also constitutes an important source of law in the Anglo-American system. That system 
is actually a mixed system of common law rules and statutory rules. The common law rules established by 
American and English courts have always been subject to displacement by legislative enactments. Indeed, 
the courts have the authority to develop common law standards only where the legislatures have not sought 
to provide legislative solutions. … In our country, the common law also is subject to the legal limitations 
imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of 
law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a 
common law rule.” 
4 
Common law is a source of both substantive and procedural law (discussed below), but it is important to 
note that there are no federal common law crimes. If Congress has not enacted legislation to make certain 
conduct criminal, that conduct cannot constitute a federal crime. 
2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group. 
3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company. 
4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company. 
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SANCHEZ
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