Common law
Common law is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Common law is deeply rooted in the principle of stare decisis, where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
The 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. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
Terminology
According to Black's Law Dictionary, common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions." Legal systems that rely on common law as precedent are known as "common law jurisdictions."Until the early 20th century, common law was widely believed to derive its authority from ancient Anglo-Saxon customs. Well into the 19th century, it was still defined as 'unwritten law' in legal dictionaries such as Bouvier's Law Dictionary and Black's Law Dictionary. According to William Blackstone's declaratory theory the common law reaffirmed pre-existing customs but did not make new law. The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.
Many notable writers, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer, eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent.
Basic principles of common law
Common law adjudication
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity.
Common law evolves to meet changing social needs and improved understanding
cautioned that "the proper derivation of general principles in both common and constitutional law... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions". Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "ts method is inductive, and it draws its generalizations from particulars".The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.
Publication of decisions
In common law systems, precedents are maintained over time through court records and historically documented in collections of case law referred to as yearbooks and law reports.After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The [|United States federal courts] relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. 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.
Comparison with statutory law
Statutes are generally understood to supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are contract law and the law of torts."Legislating from the bench"
At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what Roscoe Pound described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of statutory interpretation.Jeremy Bentham famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law. Oliver Wendell Holmes once dissented: "judges do and must legislate".
Statutory construction
There is a controversial legal maxim in American law that "Statutes in derogation of the common law ought to be narrowly construed". Henry Campbell Black once wrote that the canon "no longer has any foundation in reason". It is generally associated with the Lochner era.The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the plain meaning rule to reach decisions. As the United States Supreme Court explained in United States v Texas, 507 U.S. 529 :
As another example, the Supreme Court of the United States in 1877, held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.
Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law", which includes judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
Overruling precedent—the limits of ''stare decisis''
The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits. District court decisions are not binding precedent at all, only persuasive.Most of the U.S. federal courts of appeal have adopted a rule under which, in the event of any conflict in decisions of panels, the earlier panel decision is controlling, and a panel decision may only be overruled by the court of appeals sitting en banc or by a higher court. In these courts, the older decision remains controlling when an issue comes up the third time.
Other courts, for example, the Court of Appeals for the Federal Circuit and the US Supreme Court, always sit en banc, and thus the later decision controls. These courts essentially overrule all previous cases in each new case, and older cases survive only to the extent they do not conflict with newer cases. The interpretations of these courts—for example, Supreme Court interpretations of the constitution or federal statutes—are stable only so long as the older interpretation maintains the support of a majority of the court. Older decisions persist through some combination of belief that the old decision is right, and that it is not sufficiently wrong to be overruled.
In the jurisdictions of England and Wales and of Northern Ireland, since 2009, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts; it is the final court of appeal for civil law cases in all three of the UK jurisdictions, but not for criminal law cases in Scotland, where the High Court of Justiciary has this power instead. From 1966 to 2009, this power lay with the House of Lords, as it declared in the Practice Statement of 1966.
Canada's federal system, described [|below], avoids regional variability of federal law by giving national jurisdiction to both layers of appellate courts.