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Legal Dictionary

common law

Legal Definition of common law

Noun

  1. Judge-made law. Law which exists and applies to a group on the basis of historical legal precedents developed over hundreds of years. Because it is not written by elected politicians but, rather, by judges, it is also referred to as "unwritten" law. Judges seek these principles out when trying a case and apply the precedents to the facts to come up with a judgement. Common law is often contrasted with civil law systems which require all laws to be written in a code or written collection. Common law has been referred to as the "common sense of the community, crystallized and formulated by our ancestors". Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law. For hundreds of years, there were separate courts in England and it's dependents: one for common law and one for equity and the decisions of the latter, where they conflicted, prevailed. It is a matter of legal debate whether or not common law and equity are now "fused." It is certainly common to speak of the "common law" to refer to the entire body of English law, including common law and equity.

Related terms


Definition of common law

Alternative spellings

  • common-law (attributive use)

Noun

common law (uncountable)

  1. (law) Law developed by judges through decisions of courts and similar tribunals (also called case law), as distinguished from legislative statutes or regulations made by the executive branch.

Coordinate terms

Derived terms

  • common-law marriage

Further reading

Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law,[1] on the principle that it is unfair to treat similar facts differently on different occasions.[2] 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 (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.[3] 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 reach 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,[4] and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India,[5] Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.[6]

Notes

  1. Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law", [htm], 8 Dec. 2008: <http://www.wa-probate.com/Intro/Estate-Probate-Glossary.htm>, retrieved on 7 November 2009.
  2. Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Routledge, 2001), 386.
  3. Marbury v. Madison, 5 U.S. 137 (1803) ("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.")
  4. http://www.britannica.com/EBchecked/topic/188090/English-law; British History: Middle Ages "Common Law - Henry II and the Birth of a State". BBC. Retrieved 2009-07-23.
  5. India, being a common law country
  6. The Common Law in the World: the Australian Experience

References:

  1. Wiktionary. Published under the Creative Commons Attribution/Share-Alike License.



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