Common Law Legal Systems

Common Law Legal Systems

Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.

A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. (See below here and here for contrasting systems.)

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. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

One third of the world's population (approximately 2.3 billion people) live in common law jurisdictions or in systems mixed with civil law. Particularly common law is in England where it originated in the Middle Ages, and in countries that trace their legal heritage to England as former colonies of the British Empire, including India, the United States, Pakistan, Nigeria, Bangladesh, Canada, with the exception of Québec where a mix of civil law (on the provincial level) and common law (mostly on the federal level) is used, Malaysia, Ghana, Australia, Sri Lanka, Hong Kong, Singapore, Myanmar, Ireland, New Zealand, Jamaica, Trinidad and Tobago, Cyprus, Barbados, South Africa, Zimbabwe, Cameroon, Namibia, Botswana, Guyana and Israel.