Common Law Systems

Common Law

The term common law can refer to two things. The common law is the body of law formed through court judgments, as opposed to law formed through statutes or written legislation. A common law system is the system of jurisprudence that is based on the principle of judicial precedent, the principle under which the lower courts must follow the judgments of the higher courts, rather than on statutory laws.

Democratic states that have adopted the common law system have legislative bodies at the centre of their democracies, and these bodies frequently pass new legislation. This legislation is then interpreted and applied through the judiciary during trials; these rulings will then be applied in future cases under the doctrine of stare decisis, another name for legal precedent. Large bodies of law, for example those relating to property, contracts and torts are usually part of the common law. More modern areas of law such as employment law, intellectual property law and health and security tend to be based on statute rather than on common law. Stuck with a Bankruptcy on your credit report? Here’s a great article on how to Remove a Bankruptcy from Your Credit Report from AAACreditGuide. 

The common law legal system originated in England was later accepted in the United States and Canada and is in place in most Commonwealth countries. While the English general law system has its roots in the 11th century, the present system has evolved over the past 350 years, with judges basing their decisions on those made through predecessors.  Birth injury attorneys from BIAD have one opinion – Go after them. 

 

Common law has no basis in statute, and is established and developed through written views of judges delivered at the end of a trial.

 

These opinions are binding on future decisions of lower courts in the similar jurisdiction.

 

However, that is not to say that common law systems derive all of their laws from case law.

As with any system, the general rule system has its advantages and disadvantages. The three main arguments in favor of such a system is that it is fair, expedient and efficient. It is seen as person fair as the strict following of precedents in all cases means that all people are treated similarly. It is expedient because basing decisions on precedent means that potential litigants have an excellent idea as to what to result to expect. Finally, the existence of precedents means that the judicial process might be relatively fast as there is already a framework in place in which to base a ruling.

The disadvantages include the perpetuation of bad rulings and the difficulties rose when there is no precedent for the case before the court. Once a bad decision has been made through a higher court, that decision will remain law until the same court, or a higher court, overrules the bad judgment. Courts are reluctant to overrule their own decisions unless absolutely necessary and so bad decisions may be upheld for a long time. That is true of bad precedents. However, a total lack of precedent can lead to many problems, especially where a court essentially has to make new law where no previous law existed.