What is Common Law?
Common law is a body of unwritten laws that are based on legal precedents established by the courts. In other words, it is the customary law that develops from the judicial decisions that flow through the system. Thus, common law is essentially jurisprudence that is created by the precedential decisions of the courts of the state and federal systems. As decisions are issued by a higher level of court – typically a Supreme or Appeals Court – those decisions will establish uniformity and consistency in the decisions of lower courts. In this way, precedent governs the decisions of those lower courts unless there is a compelling reason to disregard it.
Common law for the United States has its bases in the law from England. After the American colonies were formed, the early American government established common law as the norm for legal decisions in the new country. The early American courts adopted the common law of England , while at the same time rejecting all of the law that was particular only to England. Thus, the meaning of common law evolved over years so that it was not merely a replication of English common law but rather a body of law that had its own meanings and applications. In New Mexico, the New Mexico Statutes Annotated, NMSA 1978, § 12-2-2 provides that the common law is in effect in the state "so far only as it is applicable." The New Mexico Constitution Article IV, § 44 further preserves common law. The constitution states that the judiciary powers of the state are to be vested in the courts as provided by law. The constitution of 1846 further provides that the common law system of the state shall remain in effect until repealed. (The Act of September 10, 1912). Thus, even though the common law is somewhat intertwined with statutory law, it generally remains a source of legal decision making in New Mexico.
The History of Common Law in New Mexico
Tracing the history of common law in New Mexico back to before it was a U.S. territory reveals its rich legal heritage in the territory’s transition from Spanish and Mexican rule to becoming part of the United States.
Spanish settlers and priests brought their own legal system with them when they moved north into modern-day New Mexico in the 1500s, taking possession of the land from the Pueblo and Apache peoples who lived there.
Spanish law in New Mexico became known as the Ley de las Indias, or Law of the Indies in English. Its practices were based on those of medieval Spain, which continued to be in place even after Mexico gained independence from Spain in 1821, and continued on through the U.S. takeover in 1846.
Similarly, as Mexico gained independence from Spain, its laws affected the sovereign territory that included the land that is now New Mexico. The Spanish and Mexican legal influences that had existed for centuries, however, did not completely disappear.
During the period of territorial law from 1848 until statehood in 1912, the laws of New Mexico were set by Congress, by territorial Legislature and officials, and by local customs and traditions that persisted from the Spanish and Mexican eras.
Common law had been established in all of England by the 14th century and once it was inherited by the colonies that would become states, common law evolved to fit the realities of the emerging new country.
Because New Mexico had been a territory and because its legal traditions were so influenced by Spain and Mexico, the common law that came to bear on New Mexico did so from differing perspectives to the New Mexico of the day.
The New Mexico Territory was given official statehood on Jan. 6, 1912, with a new state constitution that took effect on Jan. 1, 1913. While the new constitution stated that laws based on the constitution of the United States and on the United States’ common law would become the law of the state, it also included numerous provisions dealing with the law as it existed then, much of it rooted in tradition and custom from the Spanish and Mexican eras.
The New Mexico constitution’s Article VI states that "The common law of England and of this State, insofar as it is applicable, and all other laws and statutes of the State, so far as they are applicable, shall remain in force until repealed and replaced by judicial decision or legislative enactment." Thus, the New Mexico Constitution enshrines the concept of English common law into state law.
Despite this grounding in the past, common law in New Mexico is subject to change and evolution by the courts. Enacted legislation supersedes common law if there is any conflict between the two, New Mexico contract law attorneys say.
The coming of American common law to New Mexico was not without transition as most of the common law developed on the Eastern Seaboard of the colonies that became the United States, where Anglo-American traditions evolved. The Southern and middle colonies brought their own traditions from England that made adaptations to suit their agrarian agriculture-based economies.
According to some scholars, southern legal ideas influenced the laws that affected Mexico from the colonial period on, and even after the U.S. annexation of the area, the Spanish influence endured.
New Mexico’s settlement patterns that evolved during its long-time Spanish colonial period contributed to another variation of its common law tradition. A Spanish land law system led to the population of the territory being widely dispersed across the desert region, rather than concentrated in towns and cities.
Common Law Marriage in New Mexico
Common law marriage is a longstanding myth in American marriage. It is often perceived as a legal alternative to traditional marriage without marriage licenses, state registration and other formalities. However, common law marriage does not exist in New Mexico and is not recognized by the state.
Instead, New Mexico law recognizes a common law marriage only if the alleged common law parties have entered into a valid marriage in a state that has recognized a common law marriage between them and they are domiciled in New Mexico at the time the common law marriage was entered into. See NMSA Sec. 40-1-14 (1978); In the Matter of Adoption of a Minor, 120 N.M. 219, 899 P. 2d 1131 (Ct. App. 1995) (statute controlling law where couple believed that they had permitted Colorado common law marriage prior to moving to New Mexico).
An alleged common law marriage will not be upheld in New Mexico if the parties did not intend to be married and their relationship is illegitimate under the laws of the state in which they entered their common law marriage. To be valid, a common law marriage must meet the requirements of the state whereby it was entered. See In re Bernalillo County District Attorney’s Office, 130 N.M. 606, 28 P. 3d 1151 (2000).
The matter of common law marriage is frequently addressed by the New Mexico appellate courts. The meaning and validity of common law marriage has been addressed 15 times by New Mexico’s appellate courts in the last 50 years.
How Common Law Influences New Mexico’s Legal Landscape
Common law in New Mexico refers to the body of unwritten laws based on legal precedents established by the opinions of the state’s high court and the decisions of lower courts. Common law is a law that "develops and derives from judicial decisions rather than from statutes or constitutions." As settled by Section 7-1-2 NMSA 1978, common law in New Mexico is:
common law so far as it is not abrogated by the constitution or legislative enactment, and the common law of England as it existed in the territory of New Mexico on January 6, 1912, with the exception of the following, which is repealed: an act entitled "an act adopting the common law of England," approved March 7, 1901, and an act entitled "an act adopting the common law of England," approved February 24, 1903 .
Section 7-1-2 NMSA 1978 also states that whenever state law specifies a form that must be used under circumstances not covered by New Mexico statutes, case law gives effect to that form. The New Mexico constitution and laws "are ‘common law’ whenever there is nothing in the New Mexico Constitution or in legislative enactments that acts to abrogate the common law in these specified instances." Courts in New Mexico have held that the common law of New Mexico takes precedence over any contrary statutory provisions.
Although it is difficult to determine how prevalent the New Mexico common law system is now in New Mexico, the state will likely continue to apply it in cases as long as the constitution or legislative enactments in the state do not act to abrogate it.
Major Common Law Cases in New Mexico
Over the last century, a handful of important cases have come before the New Mexican courts that hinged on common law doctrine. These cases are particularly significant because each of them resulted in the overturning of precedent set by prior rulings.
For example, in the 1976 case of State ex rel. N.M. Department of Taxation and Revenue v. Tyrone Oil Company, the court addressed the issue of whether or not appeals in tax disputes should be heard by the state’s tax court, or if the state Supreme Court should hear these appeals. Until that point, the Supreme Court had denied tax cases under the perception that it functioned as a "court of error." In Tyrone, the state Supreme Court adopted the common law "common error doctrine," which established appellate courts as reviewing bodies for judicial error in tax proceedings. Ultimately, the court determined that legal error in such actions warranted Supreme Court appellate review, as established by common law.
In 1981, the New Mexico Supreme Court decided in the case of Butt v. State of New Mexico, adopting the common law principle of governmental immunity. However, this principle was short-lived, as in 1987, the State enacted the Tort Claims Act. This act contains several conditions that require substantive proof (for example, the maximum liability for personal injury was, at that time, $25,000, so a claimant must show damages above this threshold). The state Supreme Court interpreted the Tort Claims Act in 2010, and in its opinion, the majority stated, "the Tort Claims Act changed the common law to the extent that it limited the rights available to plaintiffs." Though the state Tort Claims Act still exists, as of 2023, it is unclear to what extent it incorporates common law principles.
A third commonly cited case of demonstrative common law reasoning in New Mexico is Doña Ana Mut. Dom. Water Assoc. v. Arrey. In 1994, a water association repurposed old drinking water pipes to serve irrigation needs, and the New Mexican Commissioner of Public Lands, Daniel B. Sayre III, sought to limit the use of these pipes to their original purpose: drinking water. The water association argued that this was not the intent of the statute. The case was decided in the New Mexican Court of Appeals, using the common law rule of ejusdem generis to analyze the meaning of the statute in question. This rule states that if a statute lists specific classes of people or things, any general phrases that follow will only apply in the context of the previous classifications. It was held that the statute at issue "cannot be construed as applying to irrigation systems," because the legislature had only deemed the statute applicable to drinking water pipes, and not those used for irrigation.
Common law principles are an integral part of New Mexican jurisprudence, and this fact is evident in the case law of the state.
Common Law Controversies and Criticisms in New Mexico
Some legal experts argue that the application of common law in New Mexico has not always resulted in fair or just outcomes, particularly for marginalized communities. The concern is that judges, who often operate with limited direct input from the community, can create laws that favor certain groups over others. Critics also argue that reliance on judicial precedent can perpetuate outdated or obsolete legal interpretations, as changes in state law may take time to be effectively incorporated into common law applications . The challenge for New Mexico’s legal system is to ensure that the common law doctrine serves the interests of all its citizens.
Recently, debates around the establishment of marriage equality and the recognition of same-sex marriages in New Mexico have led to discussions about the role of common law in shaping modern social issues. Legal scholars have called for a re-evaluation of New Mexico’s reliance on common law in these matters, suggesting that statutory law may better address contemporary realities.
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