Business, Legal & Accounting Glossary
n. the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States.
The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the “law of the monarchy” by a Duke of Cornwall, Queen Martia’s work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century, legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer’s bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which is still influenced by the Napoleonic Code. In some states the principles of Common Law are so basic they are applied without reference to statute.
Common law is case law which is established by precedent developed by judges through historical decisions. Common law varies from laws established through statutes or regulations issued by the executive branch or the federal or state legislatures.
Common laws are case-based reasoning. If a case is similar to another case than any past cases are valuable for providing a basis for future court decisions. The strength of the similarity among the cases strengthens the reasoning for similar decisions. Common laws apply within a jurisdiction and are created by a judge’s writings or legal decisions.
Common law was established under the British legal system and many countries which were previously British colonies have maintained this type of common law system. Common law is used to evaluate civil cases or torts which can include medical malpractice, personal injury, divorce cases, contract disputes and product liability cases.
There are two meanings in regular use. First, ‘common law’ is used to mean the body of law in any legal system in which decisions of the judiciary become, over the years, new laws (‘judge-made law’). In the USA, for example, the term is mostly used this way. In England, the term was originally used to mean the uniform set of laws that apply to England and Wales, derived from custom and practice by judges.
The English common law system — like most similar systems — is made more predictable by the principle of Stare decisis, or ‘binding precedent’. New legislation is introduced into the system by the apparatus of the state (see: Primary legislation), but this is general rather than particular. The decisions of judges clarify the law in specific cases. Once a decision has been made by a court, that decision binds the outcomes of cases in lesser courts where the facts are sufficiently similar. Of course, judging whether the facts are sufficiently similar to apply a precedent can be a difficult task. Historically, English law has recognized a system of ‘equity’ alongside the common law (see: Equity). Note that the term ‘common law’ is different from ‘case law’ in the sense that the former is a system, or a total body of legislation, while the latter is the written decisions of the courts. Since the 19th Century, the common law has become less significant, particularly in criminal matters, as specific legislation has been developed in Statute.
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This glossary post was last updated: 27th April, 2020 | 1 Views.