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Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes.[2][3] Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases.[4] The presiding judge determines which precedents to apply in deciding each new case.[4]
Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions.[5] When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.[5] However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.[6][7]
The common law, so named because it was "common" to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.[8][9] It established a unified legal system, gradually supplanting the local folk courts and manorial courts.[9][8] England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.[10][11][12][13] Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.[14]
- ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems Archived 22 July 2016 at the Wayback Machine, Website of the Faculty of Law of the University of Ottawa
- ^ Garner, Bryan A. (2001) [1995]. A Dictionary of Modern Legal Usage (2nd ed.). New York: Oxford University Press. p. 177. ISBN 9780195077698.
common law. A. As Noun—in Broad Contrasts. In modern usage, common law is contrasted with a number of other terms. First, in denoting the body of judge-made law based on that developed originally in England, common law is contrasted by comparative jurists to civil law, q.v. Second, 'with the development of equity and equitable rights and remedies, common law and equitable courts, procedure, rights, remedies, etc., are frequently contrasted, and in this sense common law is distinguished from equity' (OCL). Third, the term is similarly distinguished from ecclesiastical law. Fourth, it is occasionally used to denote the law common to the country as a whole-as distinguished from law that has only local applications. Finally, and perhaps most commonly within Anglo-American jurisdictions, common law is contrasted with statutory law <statutes in derogation of the common law are to be strictly construed>.
- ^ "common law". LII / Legal Information Institute. Retrieved 27 November 2024.
Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law.
- ^ a b "The Common Law and Civil Law Traditions" (PDF). Berkeley Law. 2016. Archived (PDF) from the original on 22 November 2024. Retrieved 24 November 2024.
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge.
- ^ a b "stare decisis". LII / Legal Information Institute. Archived from the original on 24 November 2024. Retrieved 27 November 2024.
Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means "to stand by things decided" in Latin. When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court's decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority.
- ^ "Marbury v. Madison, 5 U.S. 137 (1803)". Justia Law. Retrieved 27 November 2024.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
- ^ "case of first impression". LII / Legal Information Institute. Retrieved 27 November 2024.
A case of first impression is a case that presents a legal issue that has never been decided by the governing jurisdiction. ... A case of first impression lacks controlling precedent. In other words, a court deciding a case of first impression cannot rely on prior decisions nor is the court bound by stare decisis. To adopt the most persuasive rule of law, courts will look to various sources for guidance.
- ^ a b Langbein, Lerner & Smith (2009), p. 4.
- ^ a b "Common law | Definition, Origins, Development, & Examples | Britannica". www.britannica.com. 26 November 2024. Retrieved 28 November 2024.
- ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334.
2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies...
- ^ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 9780195077698.
"common law" is contrasted by comparative jurists to civil law.
- ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law" Archived 25 May 2017 at Archive-It, 8 December 2008:, retrieved on 7 November 2009. "2. The system of law originated and developed in England and based on prior court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than codified written law. Contrast: CIVIL LAW."
- ^ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
- ^ "Juriglobe". www.juriglobe.ca. Archived from the original on 2 November 2024. Retrieved 28 November 2024.