What is Common Law?

The Influence of Common Law

In the American court system, common law is also referred to as case law or precedent. It is a type of law that has been developed by using court decisions handed down by judges. This is very different than statutory law. This law is created by legislative bodies contained within a government or action from an executive branch.

History

Common law is the legal system that originated in England. It was adopted in the United States by the colonies. The phrase “common law” started being used during the 1100s. It was a legal system developed during the rule of Henry II of England. This was a time when law was based on cultural systems. Resolving disputes often involved local customs. The early English tribes all had their distinctive customs. Once the tribes came together and became organized, they needed to develop a common system of resolving disputes. At this time, it was essential a decision-maker view previous cases and how they had been decided. These legal decisions were used to establish legal traditions and guidelines. Some are still followed today.

Precedent

Common law is designed to bind future decisions to previously decided cases. Opposing parties often disagree which law applies to their case. A common law court would search past precedential decisions from similar courts for an answer. If a dispute has been previously resolved, the court is required to follow the reasoning used in the past case. The Latin term for this is asstare decisis. Should a judge determine the case they are addressing is different from all previous cases, they have the authority and obligation to create new law by making a new precedent. This decision will then become precedent and bind future court decisions.

Practice

When common law is practiced in its pure form, it becomes very complicated. One of the problems is that decisions are only binding in a specific jurisdiction. Within each jurisdiction are courts with different levels of authority. In most jurisdictions, the decisions of an appellate court are followed by lower courts in only their jurisdiction. Decisions based on the same set of case facts could provide a different result in a different jurisdiction.

Common Law Benefits

The wording of legislation is often written in very broad terms. Laws provide only the most general type of instruction on how to follow them. Common law provides a way for a court to carefully examine the specific facts of each case. The facts can be more accurately interpreted. This makes it easier to administer a law more in line with the intended result.

Politics

The court system and judges should not be influenced by politics. Common law makes it possible for a court to implement important legal reforms. These reforms may not be possible with legislators who are concerned with reelection. The courts are able to provide essential precedent without considering how it will impact of an election.

Legal Change

Common law is a way to provide legislative statutes when no legislative statute authority exists. When there is a need for adapting laws to meet a new situation, common law makes it possible. Changing or creating a new law with the legislative process takes time and will be influenced by politics. Initiating a precedent can provide an opportunity to address a legal situation so essential legislation can follow it. Common law is able to quickly address important changes in society.