Common Law
Common law refers to a legal system based on judicial decisions and customs, rather than on written laws. It is developed and refined over time through court decisions and precedents. Common law principles are used in many English-speaking countries, including the United States, and form the basis of the legal system in those jurisdictions.
6 Key excerpts on "Common Law"
eBook - ePubEnglish Legal System
An Emerald Guide
- (Author)
- 2015(Publication Date)
- Straightforward Publishing Digital(Publisher)
...There have been certain exceptions. For example, in Egerton v Harding (1974) the court decided that there was a customary duty to fence land against cattle straying from the common. Although customs develop they are not part of the law until recognised by the courts. Common Law The legal system historically could not rely on customs alone. In Anglo-Saxon times there were local courts that decided disputes but it was not until after the Norman conquest in 1066 that a more organised system of courts developed. Norman kings realised that control of the country was that much easier if the legal system was also controlled. William the Conqueror set up the Curia Regis (The Kings Court) and appointed judges to hear disputes from the nobles. In addition to this central court, judges were sent to major towns to decide important cases. In the time of Henry 11 (1154-89) these tours became more regular and the country was divided up into circuits, or areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases. On return to London the judges would discuss customs and gradually these evolved into a uniform or Common Law. Common Law is the basis of our law today, an unwritten law that developed from customs and judicial decisions. The phrase ‘Common Law’ is still used to distinguish laws that have been developed by judicial decisions, from laws that have been created by statute or other legislation. For example murder is a Common Law crime whilst theft is a statutory crime. Common Law also has another meaning. It is used to distinguish between rules that were developed by the Common Law courts (the Kings Courts) and the rules of equity which were developed by the Lord Chancellor and the Chancery Courts. Equity Historically this is an important source still playing a part today with many of our legal concepts having developed from equitable principles...
eBook - ePub- Janice Denoncourt(Author)
- 2013(Publication Date)
- Routledge(Publisher)
...The Common Law is ‘the common sense of the community, crystallised and formulated by our forefathers’. It is not the result of legislation. The Common Law was limited by a system of writs. In contrast, ‘equity’ refers to the body of rules originally administered by the Court of Chancery. The word ‘equity’ in a legal context primarily means fairness or natural justice. The law of equity developed as a fresh set of rules because of the unfair results and the limited range of remedies available in the common-law courts. ‘Common Law and civil law’ – In this context, we are concerned with the classification of law as being derived from either the Common Law or the civil law tradition. The Common Law refers to the English Common Law system of judicial precedent. A precedent is a court judgment or decision of a court of law, cited as an authority for deciding a similar set of facts. In other words, it is a case that serves as an authority for the legal principle embodied in the decision. The English Common Law system was adopted by its colonies around the world, including Canada, Australia and New Zealand among others. On the other hand, civil law refers to the Roman law legal tradition, based on the codification of legal principles. Most European countries and their former colonies around the world, for example South Africa, Brazil and others, have adopted the civil law tradition. ‘Private and public law’ – Private law is primarily concerned with the rights and duties of individuals towards each other. The state’s involvement with private law matters between its citizens is limited to providing a civilised framework for resolving the dispute, for example a court system or tribunal system. The private citizen as opposed to the state initiates a claim or complaint. Public law, however, is concerned with the relationship between the state and its citizens...
eBook - ePub- Rabinder Singh(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
...The King chose to take English customary law, fragmented and localised, no longer adequate to the needs of a changing society … The best of local laws could be applied throughout the lands. The result was a basic system of law that drew on tradition but – unlike customary law – was also capable of being built upon, and expanded or adapted in the future. Now England did not just have regional laws; it had a legal system common to the whole kingdom. A King born in France had laid the foundations upon which the immense structure of English law could be built. 1 It was Henry II who first despatched his judges around the country on ‘circuits’ to dispense royal justice, which would be common to the whole of England and would not depend on local custom and the law as administered for example by the Lord of the Manor. That system of the King’s or Queen’s Justices going around England and Wales on circuit is something that we still have in this country. When I was a Justice of the High Court, I was a Presiding Judge on the South Eastern Circuit, which includes London. So that tradition which goes back more than 800 years is still alive and well in this country. And, of course, the United States is also divided into Circuits. It is a pleasure to see that, Brooks Smith, the Chief Judge of the Court of Appeals for the Third Circuit, is also speaking at this conference. It might be thought therefore that the Common Law has never changed and remains as it was in the twelfth century. That, of course, would be absurd. The great genius of the Common Law is its ability to adapt and develop to meet the needs of a changing society. One of our greatest judges in the twentieth century was Lord Denning. When he was Denning LJ he said in Packer v Packer : 2 If we never do anything which has not been done before, we shall never get anywhere...
eBook - ePub- Angela Stanhope, Odette Hutchinson(Authors)
- 2014(Publication Date)
- Routledge(Publisher)
...Different regions had different practices, which were influenced by local customs and conventions. Law enforcement was the responsibility of regional Lords and Sheriffs. There was no recognisable central government at this time. When William the Conqueror came to the throne following the Battle of Hastings, he sought to establish a single, unified legal system and a centralised government. He achieved this unification by travelling throughout the country with his itinerant justices, to hear disputes and administer justice. These travelling courts were called the Curia Regis. The King and his itinerant justices carefully selected laws and customs from different areas of the country and began to apply them consistently throughout the realm. In historical terms this is the origin of the ‘Common Law system’: a legal system which is ‘common’ to the country as a whole (Meaning 2, on the diagram above). Difficulties with the Common Law As the Common Law was gradually developed it slowly became more and more rigid until eventually its development stalled. The factors that caused this rigidity are outlined below: 1. The restrictive operation of the doctrine of stare decisis The early Common Law operated on the basis of a restrictive form of stare decisis (see the section on ‘The Doctrine of Binding Judicial Precedent’ below). This strict form of precedent meant that judges were bound to follow decisions made in earlier cases. There were inadequate mechanisms available to avoid ‘bad’ decisions, and as a consequence the law became stale and inflexible. Note: demonstrating an understanding of the difficulties that emerged as the Common Law matured is very important. Make sure you remember to give specific details of the issues as outlined here. 2. A lack of appropriate remedies The only available remedy at the time was damages (which is simply another way of saying monetary compensation)...
- Cliff Roberson, Dilip K. Das(Authors)
- 2016(Publication Date)
- Routledge(Publisher)
...But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire. William Blackstone, Commentaries on the Laws of England (1769, pp. 357–359, available at http: // www.yale.edu/lawweb/avalon/blackstone/bk1ch10.htm, accessed May 21, 2015) Thus, the influence of Blackstone still exists in Common Law courts, more than 300 years after his death. He was probably the most influential jurist in the history of Common Law. Common Law in the United States When English settlers came to America in the seventeenth century, they brought the English Common Law with them. Except for few modifications, English Common Law became the Common Law of the colonies. During the American Revolution, there was a great deal of hostility toward the English in America. This hostility extended to the Common Law system. Accordingly, most of the new states enacted new statutes defining criminal acts and establishing criminal procedures. The statutes, however, basically enacted into statutory law what was formerly English Common Law. Today, the criminal law of the individual states is a written set of regulations that is largely the result of legislative action. These regulations are recorded in some official record within the states and are often referred to as the “penal code.” Criminal laws vary somewhat among the states. In some states, there is no reliance upon the Common Law to determine what is right and wrong. The statutes spell out specifically each act that is made a crime and the punishment that may be inflicted for the commission of such an act. For example, the code may state that manslaughter is the unlawful killing of a human being without malice...
eBook - ePubThe Politics of the Common Law
Perspectives, Rights, Processes, Institutions
- Adam Gearey, Wayne Morrison, Robert Jago(Authors)
- 2013(Publication Date)
- Routledge-Cavendish(Publisher)
...7 WHAT WE TALK ABOUT WHEN WE TALK ABOUT Common Law: THE PRACTICE OF PRECEDENT INTRODUCTION The contention of this chapter is that the doctrine of precedent is best seen as a practice through which many competing pressures are, if not reconciled, at least kept in a workable equilibrium. Our study of precedent will begin with an overview of the tension between hierarchy and flexibility. We will then look specifically at the relationship between the House of Lords and the Court of Appeal, and the possible development of an alternative practice of judicial interpretation. The final sections will engage specifically with judicial law making and human rights. We will see that it is difficult to produce any clear overarching theory of judicial law making, as it relies on the discretion and sense of a judge to ‘do the right thing’. Rather like a Raymond Carver story, the unsaid is as important as the said. This theme points back at the practice of precedent: it is a way of reading, interpreting and justifying arguments within institutional constraints. The chapter will conclude with some final reflections on substantive justice and procedural legitimacy. THE HIERARCHY OF COURTS AND BINDING PRECEDENT The practice of precedent works within the context of the court structure; the hierarchy of the courts provide the fundamental institutional structure. 1 The doctrine asserts that decisions of the Appellant Committee of the House of Lords bind all the courts below it in the hierarchy. 2 London Tramways v. London City Council (1898) was central to the foundation of what was to become the conventional form of the doctrine...
