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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.
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Laws - Tampa Attorney Mike Murburg
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.
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Injury Attorney Kristopher Barber
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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