What is the fundamental definition of common law, and what are its alternative names?

Common law is defined as the body of law primarily developed through judicial decisions rather than statutes. It is also known as judicial precedent, judge-made law, or case law. This means that legal principles are established and refined through the rulings of courts in specific cases.

What is the core principle underlying common law systems, and what does it mean?

The core principle of common law systems is stare decisis, a Latin phrase meaning 'to stand by things decided.' This doctrine dictates that courts should follow precedents established by previous decisions when ruling on similar cases, ensuring consistency and predictability in the law.

How do judges handle cases of first impression within the common law framework?

In a 'case of first impression,' where no precedent or clear legislative guidance exists, judges are empowered to resolve the issue and, in doing so, establish new precedent. This allows the common law to adapt and evolve to address novel legal questions.

When and where did the English common law system originate?

The English common law system originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It developed as a unified legal system that gradually replaced local folk and manorial courts.

How did the English common law system spread globally?

England spread its legal system across the British Isles, including Wales and Ireland, and subsequently to its overseas colonies. This expansion continued under the British Empire, leading many former colonies to retain the common law system to this day.

What percentage of the world's population lives in common law or mixed legal systems today?

Approximately one-third of the world's population currently resides in jurisdictions that follow common law or mixed legal systems that integrate common law with civil law principles.

According to Black's Law Dictionary, what is the distinction between common law and other sources of law?

Black's Law Dictionary defines common law as the body of law derived from judicial decisions, distinguishing it from law created by statutes or constitutions. Legal systems that rely heavily on precedent are termed 'common law jurisdictions'.

What was the historical belief regarding the origin of common law, and how did Jeremy Bentham challenge it?

Historically, common law was widely believed to derive its authority from ancient Anglo-Saxon customs and was often referred to as 'unwritten law.' Jeremy Bentham challenged this view, introducing the term 'judge-made law' to critique the legal profession's pretense that judges merely declared existing law rather than actively creating it.

How does common law adjudication involve the analysis of previous rulings?

In common law adjudication, determining the law requires locating relevant statutes and cases, extracting principles and analogies from judicial decisions, and then applying these to the facts of a new case. The weight given to precedents depends on their recency and the level of the court that issued them.

What is the relationship between common law, constitutional law, and statutory law?

Common law systems involve complex interactions between judge-made law, constitutional law, and statutory law. These different sources of law can influence and sometimes conflict with each other, adding layers of complexity to legal interpretation and application.

How does common law demonstrate malleability compared to statutory law?

Common law is considered more malleable than statutory law because courts can reinterpret and revise legal principles without legislative intervention to adapt to changing social and philosophical trends. This evolution typically occurs through gradual steps, minimizing disruptive breaks with past decisions.

What is the process by which common law evolves over time?

Common law evolves through a series of gradual steps, with courts incrementally working out details in their decisions. This process allows the law to change substantially over time without a sharp, abrupt shift, thereby reducing potential societal disruption.

How were precedents historically maintained and documented in common law systems?

In common law systems, precedents were historically maintained over time through court records and documented in collections known as yearbooks and law reports. These historical records serve as a crucial resource for understanding the development of legal doctrines.

Which U.S. state was the first to establish an official Reporter of Decisions after the American Revolution?

Following the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. Newer states often referred to the Massachusetts Reports as a basis for their own common law precedents.

How do private sector publishers like West Publishing contribute to the dissemination of law reports?

Private sector publishers, such as West Publishing, often enhance government-issued 'raw' decisions by adding indexing, editorial analysis, and references to key legal principles. This makes the law more accessible and easier to navigate for legal professionals.

What is the general rule regarding the relationship between statutes and common law?

Statutes are generally understood to supersede common law. They can codify existing common law, introduce new legal causes of action, or legislatively overrule common law principles.

In which areas of law does common law still have significant practical applications?

Common law continues to have practical applications in several areas of law, notably in contract law and the law of torts. These fields often rely on judicial precedent to define rights and responsibilities.

What does the legal maxim 'Statutes in derogation of the common law ought to be narrowly construed' imply?

This controversial legal maxim suggests that statutes that alter or deviate from established common law principles should be interpreted strictly. While its foundation in reason has been questioned, it reflects a historical approach to statutory interpretation.

How do modern courts approach statutes that might abrogate common law principles?

Modern jurisprudence generally presumes that legislatures intend to retain long-established common law principles unless a statutory purpose to the contrary is clearly evident. Courts look for statutes to 'speak directly' to the common law issue they are addressing.

What is 'interstitial common law'?

'Interstitial common law' refers to court decisions that analyze, interpret, and define the boundaries of laws created by other bodies, such as constitutions, statutes, and agency regulations. It involves applying existing legal frameworks to specific factual scenarios.

What are the rules governing the overruling of precedent in U.S. federal courts of appeal?

In most U.S. federal courts of appeal, decisions made by earlier panels are binding on later panels within the same circuit, unless overruled by the full court sitting 'en banc' or by a higher court. This ensures a degree of consistency within each circuit.

How does the Supreme Court of the United Kingdom handle the overruling of precedent?

Since 2009, the Supreme Court of the United Kingdom has the authority to overrule its own previous decisions, a power previously held by the House of Lords since the 1966 Practice Statement. This allows the highest court to unify and clarify the law.

What is the significance of judicial precedent for commercial economies?

The reliance on judicial precedent in common law systems provides reasonably precise guidance, allowing parties, especially commercial ones, to predict the lawfulness of their actions. This predictability and consistency are considered strengths that contribute to robust commercial systems.

Why is New York law frequently chosen in commercial contracts, even when parties have no connection to the state?

New York law is often chosen for commercial contracts due to the depth and predictability of its common law, developed over time as a major commercial center. This provides parties with greater certainty in their agreements.

What historical event marked the origin of the English common law system?

The English common law system originated in the practices of the royal courts following the Norman Conquest in 1066. Before this, legal matters were handled in local folk courts across various shires and hundreds.

How did Henry II institutionalize common law in England?

Henry II institutionalized common law by creating a unified legal system common to all royal courts. He achieved this by elevating local customs to a national level, ending local peculiarities, and reinstating a jury system.

What was the role of itinerant justices in the development of medieval English common law?

Itinerant justices, sent from the king's court (Curia Regis), traveled the country hearing disputes and applying what they interpreted as local customs. Their decisions were recorded, discussed among judges, and eventually contributed to the development of the doctrine of precedent (stare decisis).

How did the Norman Conquest influence the development of English common law?

The Norman Conquest in 1066 led to the establishment of royal courts that administered a unified legal system, known as common law, across England. This system gradually supplanted the diverse local customs and laws that existed previously.

What was the significance of the Year Books in the history of common law?

The Year Books, compilations of court cases from the 13th to 16th centuries, are a principal source for understanding the development of legal doctrines and methods in medieval England. They represent the early form of law reporting in the common law tradition.

How did Roman law influence early English common law scholars and treatises?

Early common law scholars and judges, such as Glanvill and Bracton, were familiar with Roman law, often having been trained in canon law. Bracton's influential treatise, 'De Legibus et Consuetudinibus Angliae,' was heavily influenced by the structure of Justinian's 'Institutes'.

What is the meaning of 'in rem' and 'in personam' in the context of Roman law's influence on common law?

Roman law's division of actions into 'in rem' (actions against a thing or property) and 'in personam' (actions directed against a person) influenced common law's structural concepts. These divisions laid groundwork for later legal categorizations, impacting how property and personal rights were addressed.

How did Jeremy Bentham's critique of common law differ from Blackstone's view?

While Blackstone viewed common law as a reflection of ancient customs ('declaratory theory'), Jeremy Bentham criticized this, coining the term 'judge-made law' to emphasize the active, law-creating role of judges. This shift marked a move towards understanding common law as a dynamic, evolving system.

What is a 'reception statute' in the context of common law propagation?

A reception statute is a law adopted by a former British colony upon gaining independence, formally incorporating pre-independence common law into its legal system, unless explicitly rejected. This ensures a foundational body of law for the new nation.

What was the initial reaction to the common law in the newly independent United States?

Immediately after the American Revolution, there was significant distrust and hostility towards British institutions, including the common law. Some, like the Jeffersonians, preferred legislatively enacted civil law, viewing common law developed by judges as a threat to the republic.

How did Oliver Wendell Holmes Jr. advocate for a more flexible approach to common law?

Oliver Wendell Holmes Jr. criticized the rigid adherence to old maxims and precedents, stating it was 'revolting' to follow rules without current justification. He argued that the 'life of the law has not been logic; it has been experience,' emphasizing the influence of societal needs and policy.

What major procedural reform occurred in the late 19th and early 20th centuries regarding common law pleading?

A significant reform was the abolition of strict common law pleading requirements, which had mandated specific forms of action and precise language. This shift moved the focus from technical wording to a rational consideration of facts, making justice more accessible.

What is the primary contrast between common law and civil law systems regarding precedent?

The primary contrast lies in the role of precedent: common law systems place great weight on judicial decisions as a source of law ('stare decisis'), while civil law judges typically give less weight to precedent, focusing more on codified statutes.

How does the adversarial system in common law differ from the inquisitorial system in civil law?

Common law systems typically use an adversarial system where two opposing sides present their cases to a neutral judge. In contrast, civil law systems often employ an inquisitorial system where an examining magistrate plays a more active role in investigating and presenting evidence.

What is the significance of the Uniform Commercial Code (UCC) in the United States?

The Uniform Commercial Code (UCC) is a codified framework adopted by all U.S. states that governs commercial transactions. It is an example of how common law jurisdictions are increasingly adopting codes, blending elements of civil law traditions.

Which countries primarily follow the common law legal system today?

Common law forms the basis of legal systems in countries such as Australia, Canada (except Quebec), India, Ireland, New Zealand, Singapore, South Africa, the United Kingdom, and the United States, among many other former British colonies.

How does Scotland's legal system blend common law and civil law traditions?

Scotland has a unique bijuridical system that combines elements of uncodified civil law, tracing back to Roman law, with its own historical common law. While it shares the UK Supreme Court for civil cases, its legal traditions remain distinct.

What is the legal situation in Louisiana regarding common law and civil law?

Louisiana's private law is based on civil law principles derived from French and Spanish law, ultimately from Roman law. However, its criminal law largely follows English common law, and its procedural law aligns with the U.S. federal system.

How did the Erie v. Tompkins decision impact federal common law in the United States?

The Erie v. Tompkins decision (1938) overruled the precedent set in Swift v. Tyson, holding that federal courts must apply state substantive law, including common law, in diversity jurisdiction cases. This significantly limited the scope of federal common law.

What is the basis of the legal systems in India, Pakistan, and Bangladesh?

The laws in India, Pakistan, and Bangladesh are largely based on English common law due to the historical influence of British colonial rule. While ancient Indian legal traditions existed, the current judicial systems largely derive from the British model.

How does Canadian federal law address its bijural nature?

Canadian federal statutes must use terminology appropriate for both common law and civil law in civil matters, a practice known as legislative bijuralism. This reflects the country's mixed legal heritage.

What is the role of precedent in Ghana's legal system?

Ghana follows the English common law tradition, and the doctrine of judicial precedent, based on stare decisis, applies. This principle, similar to that in other common law countries, ensures consistency in judicial decision-making.

Who were some key figures in the development and commentary of common law?

Key figures include Edward Coke, who compiled centuries of common law in the 17th century; William Blackstone, whose 'Commentaries' became a foundational treatise; and Oliver Wendell Holmes Jr., known for his influential work 'The Common Law' that focused on the legal process.

What is the purpose of Restatements published by the American Law Institute?

Restatements collect and clarify common law principles in various subject areas, such as Contracts and Torts. They are often cited by American courts and lawyers as highly persuasive authority for uncodified common law.

How did the Judicature Acts of 1873 and 1875 affect the English legal system?

The Judicature Acts merged the courts of common law with courts of equity in England. In cases of conflict between law and equity, equity was established as the prevailing principle.

What is the significance of 'time immemorial' in the context of common law?

Historically, common law was sometimes understood as deriving from customs 'beyond the memory or register of any beginning,' often referred to as 'time immemorial.' This concept reflects the ancient, unwritten nature attributed to early common law.

How did the US federal courts begin publishing decisions as a government function?

The United States federal courts began publishing decisions as a government function in 1874, after relying on private publishers for many years following the Civil War.

Common Law Wiki: The Foundation of Precedent: A Deep Dive into Common Law

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What is Common Law?

Judicial Precedent

Common law, also known as judicial precedent or judge-made law, is a body of law primarily developed through judicial decisions rather than statutes. It is largely based on precedent—judicial rulings made in previous similar cases.

The Core Principle

At its heart, common law is rooted in stare decisis, a Latin phrase meaning "to stand by things decided." This principle mandates that courts follow precedents established by previous decisions when adjudicating similar cases.

Case of First Impression

When a case presents a novel legal issue without existing precedent or clear legislative guidance, judges are empowered to resolve the matter, thereby establishing new precedent for future cases.

Core Principles

Stare Decisis

The doctrine of stare decisis is fundamental. It requires courts to adhere to established precedents, ensuring consistency and predictability in legal rulings. Decisions from higher courts or legislatures carry greater weight.

Judicial Adjudication

The presiding judge determines which precedents are applicable to the facts of a new case. This process involves careful research, analysis of statutes, and extraction of principles from prior judicial decisions.

Evolving Law

Common law is inherently adaptable. Courts can reinterpret and revise the law to align with changing social needs, political philosophies, and improved understanding, often through gradual, incremental steps.

Law in Motion

Gradual Development

Unlike the often lengthy legislative process, common law evolves incrementally. This gradual adaptation allows for the refinement of legal principles over time, minimizing disruptive breaks with established norms.

Judicial Interpretation

Judges interpret statutes and constitutional provisions, creating what is sometimes termed "interstitial common law." This involves analyzing legal texts and applying them to specific factual scenarios, shaping the law's practical application.

Beyond Maxims

While historically rooted in maxims, modern common law adjudication increasingly incorporates policy considerations, economics, social sciences, and insights from other jurisdictions, moving beyond mere "blind imitation of the past."

Common vs. Civil Law

Origins and Foundation

Common law systems trace their lineage to the English common law, emphasizing judicial precedent. Civil law systems, prevalent in continental Europe and elsewhere, derive from Roman law and are typically codified.

Role of Precedent

In common law, judicial decisions (precedent) are a primary source of law. Civil law judges generally give less weight to precedent, relying more heavily on comprehensive legal codes.

Adversarial vs. Inquisitorial

Common law systems typically employ an adversarial system where two opposing parties present their cases to a neutral judge. Civil law systems often use an inquisitorial system, where an examining magistrate plays a more active role in developing evidence.

Historical Roots

Norman Conquest Origins

Common law emerged from the practices of English royal courts following the Norman Conquest in 1066, gradually supplanting local customs and establishing a unified legal system across England.

Medieval Development

Key developments occurred through royal judges, the establishment of courts like the Court of Common Pleas, and the recording of decisions in plea rolls and Year Books, laying the groundwork for the doctrine of precedent.

Henry II (1154): Institutionalized common law by creating a unified system and jury system.
Royal Itinerant Justices: Judges traveled the country, hearing disputes and establishing common practices.
Doctrine of Precedent: Developed in the 12th and 13th centuries, binding judges to earlier decisions.

Global Propagation

The English legal system, including common law, was spread through the British Empire. Many former colonies adopted it, leading to its widespread use globally, often integrated into mixed legal systems.

Worldwide Reach

Commonwealth Influence

Common law forms the basis of legal systems in many Commonwealth nations, including Australia, Canada (except Quebec), India, New Zealand, and South Africa, reflecting historical ties to the British legal tradition.

United States System

The United States federal system and most states operate under common law principles, though specific areas like Louisiana retain civil law influences. The US Supreme Court plays a crucial role in shaping federal common law.

Mixed Jurisdictions

Approximately one-third of the world's population lives in common law jurisdictions or mixed systems that integrate common law with civil law traditions, demonstrating its adaptability and global significance.

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References

Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.

e.g., Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy of precedent binding on tribunals of the United States Patent Office)

E. Allen Farnsworth, Farnsworth on Contracts, Â§ 1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions [remain] the dominant primary source of contract law.")

Meister v. Moore, 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")

Eisenberg & Miller at 19, only about 5% of commercial contracts designate California choice of law, where nearly 50% designate New York.

Winston Churchill, A History of the English Speaking Peoples, Chapter 13, The English Common Law

T. F. T. Plucknett, A Concise History of the Common Law, 5th edition, 1956, London and Boston, pp.260â261

Cambridge History of English and American Literature The Year Books and their Value[5]

E.g., Peter Birks, Grant McLeod, Justinian's Institutes 7 (1987).

Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007, 24.

Peter Stein, Continental Influences on English Legal thought, 1600â1900, in Peter Stein, The Character and Influence of the Roman Civil Law 223 et seq. (1988).

See generally Stephen P. Buhofer, Structuring the Law: The Common Law and the Roman Institutional System, Swiss Review of International and European Law (SZIER/RSDIE) 5/2007.

Sir William Blackstone (1723â1780) in his Commentaries on the Laws of England (1765â1769)

Congressional Record: Proceedings and Debates of the ... Congress. United States, U.S. Government Printing Office, 1967, p 15876

The remainder of the "common law" discussed in the rest of the article remained intact; all that was abolished were the highly technical requirements for language of the paper provided by the plaintiff to the defendant to initiate a case.

E.g., Federal Rule of Civil Procedure, Rule 4, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief".

E.g., Federal Rule of Civil Procedure, Rule 1, civil procedure rules "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding".

the appendix to the Sineneng-Smith opinion gives an extensive catalog of cases in which the Court permissibly sought outside briefing.

William Nelson, Legal Turmoil in a Factious Colony: New York, 1664â1776, 38 Hofstra L. Rev. 69 (2009).

D'Oench, Duhme & Co. v. FDIC, 315 US 447, 472 (1942), Jackson, J., concurring. Cited in Bradley, Curtis A. International Law in the U.S. Legal System. United Kingdom, Oxford University Press, 2015, 157

Constitution Act, 1867, s. 91(10), (18)

Obiri-Korang, P. "Private international law of contract in Ghana: the need for a paradigm shift" (2017) p. 8.

Asante "Over a hundred years of a national legal system in Ghana: a review and critique" 1988 Journal of African Law 31 70.

A full list of references for this article are available at the Common law Wikipedia page

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The Foundation of Precedent

💡 Dive in with Flashcard Learning! 💡

What is Common Law? ⚖️

📜 Judicial Precedent

🏛️ The Core Principle

💡 Case of First Impression

Core Principles 🔑

⚖️ Stare Decisis

➡️ Judicial Adjudication

🔄 Evolving Law

Law in Motion 📈

⏳ Gradual Development

🧐 Judicial Interpretation

🗣️ Beyond Maxims

Common vs. Civil Law 🤝

🌍 Origins and Foundation

⚖️ Role of Precedent

⚔️ Adversarial vs. Inquisitorial

Historical Roots 🕰️

👑 Norman Conquest Origins

📚 Medieval Development

🌍 Global Propagation

Worldwide Reach 🌐

🇬🇧 Commonwealth Influence

🇺🇸 United States System

🌏 Mixed Jurisdictions

Teacher's Corner 🧑‍🏫

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References

📜 References

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Disclaimer ⚠️

📜 Important Notice

Dive in with Flashcard Learning!

What is Common Law?

Judicial Precedent

The Core Principle

Case of First Impression

Core Principles

Stare Decisis

Judicial Adjudication

Evolving Law

Law in Motion

Gradual Development

Judicial Interpretation

Beyond Maxims

Common vs. Civil Law

Origins and Foundation

Role of Precedent

Adversarial vs. Inquisitorial

Historical Roots

Norman Conquest Origins

Medieval Development

Global Propagation

Worldwide Reach

Commonwealth Influence

United States System

Mixed Jurisdictions

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice