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common law, system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term “common law” is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation (see statute), and also to signify that part of the legal system that did not develop out of equity, maritime law, or other special branches of practice.
All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority.
Characteristic Features of Common Law
The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law; today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings.
Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy.
Development of Common Law
See O. W. Holmes, The Common Law (1881; new ed., ed. by M. DeWolfe Howe, 1963, repr. 1968); T. F. Plucknett, Concise History of the Common Law (5th ed. 1956); H. Potter, Historical Introduction to English Law and Its Institutions (4th ed. 1958); A. R. Hogue, Origins of the Common Law (1966); R. C. van Caenegem, The Birth of the English Common Law (1973); J. H. Baker, The Legal Profession and the Common Law (1986); R. L. Abel and P. S. C. Lewis, ed., The Common Law World (1988).
common lawa system of law, of which English law is the prime example, based on legal precedents created by judges. Thus, this system directly contrasts with more formally codified systems of ‘civil law’, such as those based on ROMAN LAW (e.g. Scottish law). In common-law systems, however, increasing legislative activity by the STATE has meant that ‘statute law’ also plays an important role within such systems.
a legal system in which judicial precedent is considered the primary source of law. Laws regulate various relationships, but they are not codified in a single system; all matters that are not regulated by law, as well as the interpretation and application of the laws, are governed by common law. Common law prevails in Great Britain (but not Scotland), the United States (except for Louisiana), Canada, Australia, New Zealand, and several other countries that are former British colonies and have adopted the British legal system.
Common law originated in England in the 13th and 14th centuries on the basis of local customs and the practices of royal courts. Because procedure in these courts was extremely formalistic, a parallel system, known as the law of equity, appeared in the 14th century. In 1873 the common law and the law of equity were merged into a single system of common law, but in theory and practice there was a precise distinction between the legal institutions of each system.
Common law combines formalism with almost unlimited court discretion. Ostensibly a court is bound by a decision handed down at an earlier time in a similar case by a court of the same or higher instance, but since there are a great number of precedents, a court may select those that confirm its position. Employing highly refined techniques of interpreting precedent, the court may reach a contrary decision without nullifying a previously established rule of law. Common law retains the legal institutions and terminology adopted during the period of its formation, it uses them used to regulate relations under modern capitalism. The preservation of archaic forms and of a special “legal language” and the necessity of understanding a large number of precedents make common law essentially inaccessible to those who do not have special legal training.
Describing English common law, F. Engels wrote: “The lawyer is everything here; a person who has spent his time wisely enough on this legal jumble, this chaos of contradictions, is omnipotent in the English court. The ambiguity of the law has, of course, led to a belief in the authority of the decisions of earlier courts in similar cases; this is only a means of bolstering itself, because these judgments are just as mutually contradictory” (K. Marx and F. Engels, Sock, 2nd ed., vol. 1, p. 639).
In the 1940’s and 1950’s many legislative acts were adopted in Great Britain, but they do not diminish the importance of common law because the application and interpretation of the law depend essentially on the courts.
In the United States and other countries that have adopted common law, it has evolved in accordance with its general principles, although not all the institutions and forms that developed in Great Britain have been included in the common law of the United States and its individual states or of Canada and its provinces. In these countries the more obsolete forms have been discarded, and common law has come to be based on the precedents of the country’s own courts, although there are frequent references to English common law in court practice.
REFERENCEDavid, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 252–332. (Translated from French.)
B. O. KHALFINA