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What is Common Law?

Court house

The term Common Law refers to a legal system which is for the most part formed by decisions that have been made by the courts rather than on written laws and regulations that are imposed by government officials or legislatures. Reasoning per each case is necessary to interpret common law. It is based more on a principle and reasoning through particular circumstances to evaluate a case and determine what laws are actually applicable. This means that decisions which have been made about cases which are similar in nature become very valuable since the new case in question will be evaluated based on previous case decisions. The more similar the cases are, the stronger the link between them. The term, common law can also be used to refer to laws which did not originate from other branches of law. Statutes are actually brief explanations of the law they represent and are not explanatory in themselves. Codification is the process through which statutes are passed and then expressed and contained in a single document. This makes it more easily understood within the law that already exists instead of needing to create new laws.  Common Law in most cases only applies inside an area of jurisdiction. Judges oftentimes create common law by writing out their opinions on cases. When they do this, it binds lower courts in the same jurisdiction to the same types of judgments. The foundation that supports this type of law is formed by property, torts and contracts.

History of Common Law

Common Law is the unwritten traditional law of England. It was based more on customer and usage rather than a written code. It was also developed over a thousand years before the United States was founded. Queen Martia who was married to a Briton King of a small kingdom in England supposedly wrote all the pre-Saxon legal ramifications. A Duke of Cornwall had also written a book entitled, “Law of the Monarchy” which was translated into emerging English along with Queen Martia’s work in about 870 AD by King Alfred. William the Conqueror combined the Anglo Saxon law with Norman Law which ended up forming English Common Law which was carried out more by custom and precedent rather than by the written code. Precedents set by the courts created the foundation for legal decisions on into the 14th century. These were not inclusive of the law of equity which stemmed from the royal power which was written to prohibit certain acts. Common Law became the basic legal code for most states thanks to Sir William Blackstone who wrote the Commentaries on the Laws of England in 1769. This became the Bible for the American lawyer. Today much of the common law has been written into statutes with some modern variations, except inLouisiana which still continues to be influenced by Napoleonic Code. In some of the states common law is considered to be very basic and is applied without the use of statues.

The English Legal System 

We could conclude that common law is based on the legal system of England as it is the foundation of the legal system in many English speaking countries. This includes the US, the Philippines, Sri Lanka and Hong Kong.England had three courts which contributed to the basis of common law: King’s Bench, Court of Common Pleas and Exchequer. These were established to supersede the local court’s judgments. Most of the former British colonies still practice common law. However, some English speaking countries including Quebec and South Africa along with the state of Louisiana have what is called a pluralistic legal system. This means that they combine civil, customary, common and religious law.

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