What You Didn't Know About the Evolution of Common Law

The main concept of common law is that it is developed on a decision-based, case-by-case basis. This means that common law is an ever evolving area of the legal system because new cases are always being decided. Based on this aspect, common law differentiates from statutory law. Statutory laws are not generally subject to change based on rulings. These laws will be more solid.

Courts in common law systems are able to reinterpret certain laws in order to reflect changes in society. However, these changes will not generally come in a drastic form, but are instead gradually made over a period of time. When changes are made to statutory laws, it will normally come in a more abrupt manner than common law evolution.

An example of this type of change is the evolution of liability for negligence in common law. Historically, a third party would not be able to collect for negligence, even if the defendant's actions harmed the plaintiff. Through a series of court decisions, this was changed. The evolution of the common law allows for corrections to be made when the legal system is not operating correctly.

Most of the time, when making important decisions judges will reference previous cases that have similar circumstances. The theory is that if that another case with similar circumstances was ruled in a certain way, this should remain consistent for all subsequent cases. When judges rule on a case where there is little or no precedent, this is often called a case of first impression. This means that a judge can reference prior court cases, but there is no case that exists with the same circumstances and there is, therefore, no precedent. This means that the judge is in a sense responsible for making laws. As a result of the judgment on this case of first impression, all subsequent court cases will be ruled in a similar manner. This ensures a certain stability in the legal system.

Common law systems may give a considerable amount of authority to judges when decisions are made. However, because these decisions are based on prior decisions, judges must abide by binding precedent. This attempts to avoid any bias or corruption on the part of judges. A judge will always write a legal opinion when making a major decision in a common law jurisdiction.

A legal opinion is a written publication that will explain a judge's ruling. It is in the legal opinion that judges will reference what precedents were used to form the decision. This ensures that a ruling was issued on legitimate terms, and the judge is able to reference similar situations where this ruling was held.

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