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Common law

Not to be confused with Jus commune.
Legal systems of the world, with common law systems in several shades of pink[1]

Common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.[2] The defining characteristic of common law is that it arises as precedent. Common law courts look to the past decisions of courts to synthesize the legal principles of past cases. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.[3] If a court finds that a similar dispute to the present one has been resolved in the past, the court is generally bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (a "matter of first impression"), and legislative statutes (also called "positive law") are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue.[4] The opinion from a common law judge agglomerates with past decisions as precedent to bind future judges and litigants, unless overturned by subsequent developments in the statutory law by Legislature or in the case law by Appeal Courts.

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.[5] 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.[6][7][8][9]

The term "common law", referring to the body of law made by the judiciary,[10] is often distinguished from statutory law and regulations, which are laws adopted by the legislature and executive respectively. In legal systems that follow the common law, judicial precedent stands in contrast to and on equal footing with statutes. The other major legal system used by countries is the civil law, which codifies its legal principles into legal codes and does not treat judicial opinions as binding.

Today, one-third of the world's population lives in common law jurisdictions or in mixed legal systems that combine the common law with the civil law, including[11] Antigua and Barbuda, Australia,[12][13] The Bahamas, Bangladesh, Barbados,[14] Belize, Botswana, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Myanmar, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and all 50 states save Louisiana), and Zimbabwe.

  1. ^ Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems Archived 22 July 2016 at the Wayback Machine, Website of the Faculty of Law of the University of Ottawa
  2. ^ Garner, Bryan A. (2001) [1995]. A Dictionary of Modern Legal Usage (2nd ed.). New York: Oxford University Press. p. 177. ISBN 9780195077698.
  3. ^ Karl Llewellyn, The Common Law Tradition: Deciding Appeals at 77–87, Little, Brown, Boston MA (1960)
  4. ^ Marbury v. Madison, 5 U.S. 137 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.")
  5. ^ Langbein, Lerner & Smith (2009), p. 4.
  6. ^ Black's Law Dictionary – Common law (10th ed.). 2014. p. 334. 2. The body of law based on the English legal system, as distinct from a civil-law system; the general Anglo-American system of legal concepts, together with the techniques of applying them, that form the basis of the law in jurisdictions where the system applies...
  7. ^ Garner, Bryan A. (2001). A Dictionary of Modern Legal Usage (2nd, revised ed.). New York: Oxford University Press. ISBN 9780195077698. "common law" is contrasted by comparative jurists to civil law.
  8. ^ Washington Probate, "Estate Planning & Probate Glossary", Washington (State) Probate, s.v. "common law" Archived 25 May 2017 at Archive-It, 8 December 2008:, retrieved on 7 November 2009. "2. The system of law originated and developed in England and based on prior court decisions, on the doctrines implicit in those decisions, and on customs and usages rather than codified written law. Contrast: CIVIL LAW."
  9. ^ Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London: Loncross Denholm Press, 2008), 484.
  10. ^ Carpenter, Charles E. (1917). "Court Decisions and the Common Law". Columbia Law Review. 17 (7): 593–607. JSTOR 1112172. (common law court "decisions are themselves law, or rather the rules which the courts lay down in making the decisions constitute law.")
  11. ^ JuriGlobe, Alphabetical Index of the 192 United Nations Member States and Corresponding Legal Systems[1] Archived 22 July 2016 at the Wayback Machine
  12. ^ "The Common Law in the World: the Australian Experience" (PDF). W3.uniroma1.it. Archived from the original (PDF) on 27 July 2011. Retrieved 30 May 2010.
  13. ^ Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, (2015) Bond Law Review, Volume 27.[2] Archived 31 July 2017 at the Wayback Machine
  14. ^ "Parliament of Barbados: one of the oldest Constitutions in the Commonwealth". Archived from the original on 22 November 2011. Retrieved 6 November 2011.

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