You Quick and Easy Guide to Understanding Common Law

What is Common Law? Common law, which is also referred to case law or precedent, is a branch of law developed and undertaken by judges through decisions made in court or similar tribunals rather than developed through legislative statutes or an executive branch of government. Common law binds future decisions in cases where both parties disagree on what law or scope of legality is being reviewed. Common law upholds the belief that if a similar dispute has been resolved in a past case, the court is bound to follow the reasoning and evaluation process used in the prior decision. That being said, if the court finds that the present issue is fundamentally separate from previous cases, a judge has the authority and duty to develop a law by creating precedent. As a result, the new decision takes precedence and will bind future court decisions. The scope of common law is considerably more complicated that an idealized system; the decisions of a particular court are only binding in the underlying jurisdiction, and within a specific jurisdiction, some courts possess more power than other. Connotations of Common Law Common Law versus Statutory Law and Regulatory Law: This classification distinguishes the authority that created a law. In most jurisdictions, statutory law is developed and enacted by a legislature while regulatory law is promulgated by an agency within an executive branch pursuant to the rule-making authority’s deliberation. Common law; however, incorporates decisions issued by court systems; pure common law arises from the inherent authority of the court system to define what the scope of the law is, even in the absence of a defined statute. Common Law systems versus Civil law systems A common law system will place importance on court decisions with a similar force of law as a statute would. In contrast, a civil law jurisdiction, a judicial precedent holds less weight, while scholarly literature is awarded more Principles of Common Law In a common law jurisdiction, an extensive process is required to research and analyze a specific ruling to determine “what a law is” in a given situation. To begin this process, one must first ascertain the facts in question. Following this evaluation, one must locate any relevant cases and statutes present. Then one must extract the given principles, statements, and analogies offered by various courts as to what they consider fundamental in determining how the court is likely to rule on the issues or facts present in the case. Subsequent decisions or rulings offered by higher court systems or legislative bodies will carry more weight than earlier cases and the lower court systems. Lastly, one must integrate all the reasons given and the lines drawn to determine what “the law is.” Following this, one must then apply the product to the facts present in the case.

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