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Common Law

Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action.

The common law is created and refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent. The body of precedent is called "common law" and it binds future decisions. In future 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 prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression."Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

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 non-appellate 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 reach similar results, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in those nations which trace their legal heritage to Britain, including the United Kingdom, most of the United States and Canada, and other former colonies of the British Empire.

Primary definitions

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

This connotation distinguishes between the authorities that promulgate a law. For example, in most areas of law in most jurisdictions in countries that trace their legal heritage to Britain (members of the Commonwealth of Nations and the United States), there are "statutes" enacted by a legislature, "regulations" promulgated by executive branch agencies pursuant to a delegation of rule-making authority from a 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) law arising purely from the common law with no express statutory authority, 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) decisions that discuss and decide the fine boundaries and distinctions in law promulgated by other bodies, such as the Constitution, statutes and 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, almost all non-Islamic, non-common law countries), judicial precedent is given relatively less weight, and scholarly literature is given relatively more. For example, the Napoleonic code expressly forbade French judges from pronouncing the law.

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 and recognized trusts of property. This split propagated to many of the colonies, including the United States (see "Reception Statutes," below). The distinction between "law" and "equity" was important in: (a) categorizing and prioritizing rights to property; (b) 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 may be decided by a judge (issues of what the law is, and all issues relating to equity); and (c) in the principles that apply to the grant of equitable remedies by the courts. For most purposes, most jurisdictions, including those within the US, have merged the two courts. Additionally, even before the separate courts were merged together, most courts were permitted to apply both law and equity (though under potentially different procedural law). Even so, the split survives and remains relevant for determining at least these three classes of issues. Other exceptions are discussed in "Common Law Systems," below.

4. Historical uses

In addition, there are several historical uses of the term that provide some background as to its meaning. The English Court of Common Pleas dealt with lawsuits in which the king had no interest, i.e. between commoners. Additionally, from at least the 11th century and continuing for several centuries after that, there were several different circuits in the royal court system, served by itinerant judges who would travel from town to town dispensing the King's justice. The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit. The more widely a particular law was recognized, the more weight it held, whereas purely local customs were generally subordinate to law recognized in a plurality of jurisdictions. These definitions are archaic, their relevance having dissipated with the development of the English legal system over the centuries, but they do explain the origin of the term.

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