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Common law

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Common law originates from medieval England. It is a combination of commonly accepted traditions, principles, judicial decisions and case precedents.

The common law is found in many jurisdictions that were once British colonies. In many of these jurisdictions, today, much of the common law has codified as statute law. However, previous relevant judicial decisions also play a significant role for interpreting the law, whether codified or not.

Common law is law developed by judges through decisions of courts & like tribunals (also called case law), rather than through legislative statutes or executive division action. A "common law system" is a legal system that gives great presidential load to common law, on the principle that it is unjust to treat related facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In prospect cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the previous decision (this principle is known as stare decisis). If, however, the court finds that the present disagreement is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will attain similar results, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.


Contents

Primary connotations

The term common law has three main connotations and some historical meanings worth mentioning:

1. Common law as opposed to statutory law and regulatory law

This connotation distinguishes the authority that promulgated a law. For example, most areas of law in most Anglo-American jurisdictions include "statutory law" enacted by a legislature, "regulatory law" promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, and common law or "case law", i.e., decisions issued by courts (or quasi-judicial tribunals within agencies). This first connotation can be further differentiated into (a) pure common law arising from the traditional and inherent authority of courts to say what the law is, even in absence of an underlying statute, e.g., most criminal law and procedural law before the 20th century, and even today, most of contract law and the law of torts, and (b) court decisions that decide the fine limits and distinctions in law promulgated by other bodies, such as judicial interpretations of the Constitution, of statutes, and of regulations.

2. Common law legal systems as opposed to civil law legal systems

This connotation differentiates "common law" jurisdictions and legal systems from "civil law" or "code" jurisdictions. Common law systems place great weight on court decisions, which are considered "law" with the same force of law as statutes. By contrast, in civil law jurisdictions (the legal tradition that prevails in, or is combined with common law in, Europe and most non-Islamic, non-common law countries), legal precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably), and scholarly literature is given more. For example, the Napoleonic code expressly forbade French judges from pronouncing general principles of law.

As a rough rule of thumb, common law systems trace their history to England, while civil law systems trace their history to Roman law.

The contrast between common law and civil law systems is elaborated in Alternatives to common law systems, below.

3. Law as opposed to equity

This connotation differentiates "common law" (or just "law") from "equity". Before 1873, England had two parallel court systems: courts of "law" that could only award money damages and recognized only the legal owner of property, and courts of "equity" that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes," below). For most purposes, most jurisdictions, including the U.S. federal system and most states, have merged the two courts. in addition, even before the separate courts were merged together, most courts were permitted to apply both law and equity, though under potentially different procedural law. Nonetheless, the historical distinction between "law" and "equity" remains important today when the case involves issues such as the following:

  • Categorizing and prioritizing rights to property—for example, the same object of property often has a "legal title" and an "equitable title," and these two groups of ownership rights may be held by different people.
  • in the United States, determining whether the Seventh Amendment's right to a jury trial applies (a determination of a fact necessary to resolution of a "common law" claim) or whether the issue will be decided by a judge (issues of what the law is, and all issues relating to equity).
  • the standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review (issues of law are reviewed de novo, that is, "as if new" from scratch by the appellate tribunal, while most issues of equity are reviewed for "abuse of discretion," that is, with great deference to the tribunal below).
  • the remedies available and rules of procedure to be applied.


Basic principles of common law

Common law adjudication -

In a common law jurisdiction several stages of research and analysis are required to determine what "the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines what "the law is". Then, one applies that law to the facts.


Reference

See also

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