Common law refers to a system of law that is based on judicial precedent and custom rather than statutory laws enacted by legislatures. It originated in England and was developed over centuries through court decisions, traditions, and practices. Common law principles are applied by judges to resolve legal disputes, interpret statutes, and create legal precedents for future cases. The essence of common law is the principle of stare decisis, which means “to stand by things decided,” requiring courts to adhere to previous decisions when deciding similar cases. Common law systems provide flexibility and adaptability to changing circumstances while maintaining consistency and predictability in legal outcomes. Common law principles have influenced legal systems around the world, including many countries in the English-speaking world, and continue to play a significant role in shaping modern legal principles and practices.
A legal system that is based on custom, tradition, and judicial decisions rather than on written laws or statutes. It is developed and refined over time through court decisions and precedents. Common law is used in countries such as the United Kingdom, the United States, and Canada.
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 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 that they are applied without reference to statute.
Common law is a body of precedent that judges have created through earlier rulings. Common law varies from laws established through statutes or regulations issued by the executive branch or the federal or state legislatures.
Common laws are based on case-based reasoning. If a case is similar to another case, then 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 that 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 recognised 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.
Common law is a system of law that is based on judicial decisions and precedents rather than on statutes or codes.
Common law is developed through court decisions, while statutory law is created by legislative bodies.
Judges in the common law system interpret and apply the law, and their decisions become part of the body of common law.
Yes, common law can be changed or updated through new court decisions that establish new precedents.
Precedent is important in the common law system because it provides consistency and predictability in the application of the law.
In some cases, statutory law can override common law, but in other cases, common law principles may still apply.
Custom and tradition can influence the development of common law, especially in areas where there is no specific statutory law.
Common law principles may be used in international legal disputes, especially when the parties involved come from common law jurisdictions.
Common law principles play a significant role in determining and protecting property rights, including issues related to ownership, use, and transfer of property.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 11th April, 2024.
To help you cite our definitions in your bibliography, here is the proper citation layout for the three major formatting styles, with all of the relevant information filled in.
- Page URL:https://dlssolicitors.com/define/common-law/
- Modern Language Association (MLA):Common Law. dlssolicitors.com. DLS Solicitors. April 27, 2024 https://dlssolicitors.com/define/common-law/.
- Chicago Manual of Style (CMS):Common Law. dlssolicitors.com. DLS Solicitors. https://dlssolicitors.com/define/common-law/ (accessed: April 27, 2024).
- American Psychological Association (APA):Common Law. dlssolicitors.com. Retrieved April 27, 2024, from dlssolicitors.com website: https://dlssolicitors.com/define/common-law/