common law | Definition

Doc's CJ Glossary by Adam J. McKee
Course: Introduction / Procedural Law

Common law is a legal system based on customs, practices, and judicial decisions, emphasizing precedent and evolving with societal changes.

I. Introduction

Common law is a legal system that is used in many countries around the world, including the United States, England, and Canada. It is based on the idea that the law is derived from the customs, practices, and judicial decisions of society rather than from written laws or statutes. This system has its roots in medieval England and has evolved over centuries to become a fundamental aspect of many legal systems today.

II. Origins of Common Law

The common law system traces its origins to medieval England, where it emerged as a way to standardize and harmonize the diverse legal customs and practices of the various regions and communities. This was done primarily through the decisions of judges, who were tasked with resolving disputes and interpreting the law in individual cases. As these decisions were recorded and disseminated, they began to serve as a basis for future rulings and helped to establish a more uniform and predictable legal system.

III. Principles

At the heart of the common law system are several key principles which continue to shape its development and application in modern legal systems:

Judicial Precedent: In a common law system, judges play a central role in the development of the law. When a case is heard in court, the judge will consider the legal principles and precedents that have been established in similar cases, as well as the specific facts of the case at hand. The judge will then make a decision and issue a ruling, which will be recorded and may be cited as precedent in future cases.

Stare Decisis: This Latin term, meaning “to stand by things decided,” refers to the principle that judges should follow the precedent set by previous court decisions when deciding similar cases. This process of legal precedent is an important feature of common law systems and helps to ensure consistency and predictability in the law.

Custom and Practice: Common law is rooted in the customs and practices of society, which evolve and change over time. As a result, the common law is often seen as a more flexible and adaptable legal system capable of responding to changing social norms and circumstances.

Adversarial Process: In common law systems, legal disputes are typically resolved through an adversarial process in which opposing parties present their arguments and evidence before a neutral judge or jury. This process is designed to ensure fairness and impartiality in the determination of legal disputes.

IV. Common Law vs. Civil Law

Common law is distinct from civil law, which is a legal system that is based on a comprehensive written code of laws. Civil law systems, which are common in many European countries and other parts of the world, rely primarily on written statutes and codes as the primary source of law. In these systems, the role of judges is often more limited, with their primary responsibility being to apply the written law to the facts of individual cases.

V. Conclusion

Common law is a legal system with deep historical roots and enduring significance in many countries around the world. It is characterized by its reliance on judicial precedent, custom, and practice and its emphasis on the adversarial process in the resolution of legal disputes. As a flexible and adaptable system, common law continues to evolve and respond to the changing needs and values of society, shaping the development and application of law in countries that follow this system.

[ Glossary ]

Last Modified: 05/08/2023


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