In my previous post titled Who Can Bring a Wrongful Death Lawsuit Under Georgia Law?, I talked about Georgia's wrongful death statute, which provides that when someone commits a tort that kills someone else, the family of the person who was killed can file a lawsuit to recover damages. See O.C.G.A. § 51-4-1, et seq. As a lawyer, I use that statute when I bring a Georgia wrongful death lawsuit on a family's behalf.
I mentioned in my previous post that the Georgia wrongful death statute is considered to be "in derogation of common law." That phrase is so strange that I thought that as an Atlanta, Georgia, legal blogger, I would devote one of my entries to explaining what on earth the "common law" is, and why something would be "in derogation of" it.
My Black's Law Dictionary defines the common law as "those principles and rules of action. . . which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs, . . . particularly the ancient, unwritten law of England." One California case drew a bright line, saying that the common law was any law "of England and the American colonies before the American revolution." People v. Rehman, 253 Ca.2d 119, 61 Ca. Rptr. 65, 85.
In other words, the common law is the law that arose after years and years of courts making decisions. The courts were acknowledged to have the inherent authority to define what the law was, and over time a consensus and clear rules emerged from the courts' decisions.
Judge Learned Hand, a brilliant and eloquent jurist who sat on the United States Second Circuit Court of Appeals from 1924 to 1951, likened the common law to a coral reef that builds up slowly over time:
(Common law) stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.
(Judge Hand's picture is at the front of this blog.) Since the courts were the ones defining and creating the "common law", they reasoned that could be flexible when they interpreted it. If a new situation arose, and the common law did not really fit the situation, the common law could be adjusted.
When the legislature passes a statute that creates new law, however, the courts find the statute is "in derogation of the common law." To say that the law is "new" is really a misnomer. Take Georgia's wrongful death statute, for instance. The first statutory cause of action for wrongful death, Lord Campbell's Act, was passed in 1846 by the British Parliament. "In 1850, Georgia patterned its first wrongful death statute after Lord Campbell's Act. In 1933, the Georgia legislature enacted Code Ann. § 105-1309, which created and established a new property cause of action in favor of the next of kin of the deceased, which had not previously existed." Stewart v. Bourn, 250 Ga. App. 755, 756-757 (Ga. Ct. App. 2001). Clearly, then, there is nothing particularly "new" about Georgia's wrongful death statute!
The courts had been a part of creating the common law, and so they felt they could adjust it. Since the "new" statutory law was "in derogation of" the traditional law, the courts concluded that they had to strictly interpret what the legislature wrote, enforcing that law exactly as written.
