52 Facts About Common law

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

In cases where parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts.

Common law, so named because it was "common" to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.

Civil law judges tend to give less weight to judicial precedent, which means that a civil law judge deciding a given case has more freedom to interpret the text of a statute independently, and therefore less predictably.

The role of providing overarching principles, which in common law jurisdictions is provided in judicial opinions, in civil law jurisdictions is filled by giving greater weight to scholarly literature, as explained below.

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English Court of Common Pleas dealt with lawsuits in which the Monarch had no interest, i e, between commoners.

The term "common law" was used to describe the law held in common between the circuits and the different stops in each circuit.

The more widely a particular Common law was recognized, the more weight it held, whereas purely local customs were generally subordinate to Common law recognized in a plurality of jurisdictions.

Holmes wrote in a 1917 opinion, “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.

In practice, common law systems are considerably more complicated than the simplified system described above.

Common law decisions are published in law reports for use by lawyers, courts and the general public.

Government publishers typically issue only decisions "in the raw, " while private sector publishers often add indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.

Canada's federal system, described below, avoids regional variability of federal Common law by giving national jurisdiction to both layers of appellate courts.

Reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States.

In contrast, in jurisdictions with very weak respect for precedent, fine questions of Common law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of Common law as reliable guides.

For example, civil Common law can be clearer than case Common law when the legislature has had the foresight and diligence to address the precise set of facts applicable to a particular situation.

Common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.

The degree to which common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs – all of which were incorporated into the Norman common law – is still a subject of much discussion.

The type of procedure practiced in common law courts is known as the adversarial system; this is a development of the common law.

In time, a rule, known as stare decisis developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another.

English Court of Common Pleas was established after Magna Carta to try lawsuits between commoners in which the monarch had no interest.

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law.

However, the view that courts lack Common law-making power is historically inaccurate and constitutionally unsupportable.

The impact of Roman Common law had decreased sharply after the age of Bracton, but the Roman divisions of actions into in rem and in personam used by Bracton had a lasting effect and laid the groundwork for a return of Roman Common law structural concepts in the 18th and 19th centuries.

Signs of this can be found in Blackstone's Commentaries on the Laws of England, and Roman Common law ideas regained importance with the revival of academic Common law schools in the 19th century.

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Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state.

The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law.

Several decades after independence, English law still exerted influence over American common law—for example, with Byrne v Boadle, which first applied the res ipsa loquitur doctrine.

In England, courts of Common law were combined with courts of equity by the Judicature Acts of 1873 and 1875, with equity prevailing in case of conflict.

Centuries, through to the 19th century, the common law recognized only specific forms of action, and required very careful drafting of the opening pleading to slot into exactly one of them: debt, detinue, covenant, special assumpsit, general assumpsit, trespass, trover, replevin, case, and ejectment.

Under the old common law pleading standards, a suit by a pro se party was all but impossible, and there was often considerable procedural jousting at the outset of a case over minor wording issues.

Main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of Central and South America.

Reason, statutes in civil Common law systems are more comprehensive, detailed, and continuously updated, covering all matters capable of being brought before a court.

Common law systems tend to give more weight to separation of powers between the judicial branch and the executive branch.

In contrast, civil Common law systems are typically more tolerant of allowing individual officials to exercise both powers.

Examples of common law being replaced by statute or codified rule in the United States include criminal law, commercial law and procedure .

Centuries-old authority of the common law courts in England to develop law case by case and to apply statute law—"legislating from the bench"—is a traditional function of courts, which was carried over into the U S system as an essential component of the "judicial power" specified by Article III of the U S constitution.

On Long Island, Staten Island, and in Westchester, on the other hand, English courts were administering a crude, untechnical variant of the common law carried from Puritan New England and practiced without the intercession of lawyers.

The influence of Roman-Dutch Common law continued in the colony well into the late 19th century.

Louisiana's administrative law is generally similar to the administrative law of the U S federal government and other U S states.

Louisiana's procedural law is generally in line with that of other U S states, which in turn is generally based on the U S Federal Rules of Civil Procedure.

Post-1938, federal courts deciding issues that arise under state Common law are required to defer to state court interpretations of state statutes, or reason what a state's highest court would rule if presented with the issue, or to certify the question to the state's highest court for resolution.

Ancient India represented a distinct tradition of Common law, and had an historically independent school of legal theory and practice.

Canadian criminal law uses a common law system no matter which province a case proceeds.

Roman Dutch common law is a bijuridical or mixed system of law similar to the common law system in Scotland and Louisiana.

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Roman Dutch common law jurisdictions include South Africa, Botswana, Lesotho, Namibia, Swaziland, Sri Lanka and Zimbabwe.

Many of these jurisdictions recognise customary law, and in some, such as South Africa the Constitution requires that the common law be developed in accordance with the Bill of Rights.

Roman Dutch common law is a development of Roman Dutch law by courts in the Roman Dutch common law jurisdictions.

Roman Dutch common law relies on legal principles set out in Roman law sources such as Justinian's Institutes and Digest, and on the writing of Dutch jurists of the 17th century such as Grotius and Voet.

Ghana, after independence, did not do away with the common law system inherited from the British, and today it has been enshrined in the 1992 Constitution of the country.

Common law's works are still cited by common law courts around the world.

Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions.