The common law is the body of law that draws its judicial decisions from previous precedents from competent courts in contrast to the use of a constitution or statute. This type of legislation was developed in England in the 13th century. Since then it has spread to the British colonies, and one third of the world population derives its jurisdiction from the common law or uses a mixture of both civil and common law.
England, the United States and other English colonies are the main users of common law. Louisiana is the only state in the United States that does not use common law. This system of law is different from the civil law commonly used by the Spanish and French colonies. Besides Quebec, which uses French civil law, Canada uses the common law.
Principles of Common Law
Common law draws its decisions from previous judicial precedents rather than from the use of legislative statutes. Common law judges determine the facts in a particular case and then use the sentences of their predecessors to resolve disputes. These previous decisions are documented in legal reports in which the decision is linked to a jurisdiction of a similar or a lower court but does not apply to higher courts. The judges of these courts apply the doctrine of Stare Decisis.
In a first impression case, common law judges examine other decisions of other jurisdictions or previous judicial experience to draw conclusions. This fact makes common law flexible in dealing with unexpected disputes. The common law helps to address evolving social needs and improves understanding.
Common law is the backbone of all other areas of law. Due to the absence of certain statutes, countries use the common law to resolve certain disputes. In England and Wales, most states in the United States and Canada (except Québec) do not have the fundamental law on wrongs, property and contracts. To find the correct law to apply to particular facts, judges or juries must look back to previous precedents.
The common law also has the principle of canceling the previous one. This policy provides a limitation for setting decisis. In the event of disputes relating to a particular decision of a lower court, the higher court may annul the conclusions of the law and take a decision when it finds that the facts are not in accordance with the case.
Common law decision publications are drafted in legal reports that will be used by courts in future decisions, lawyers and even the general public. According to the common law system, two parties use the court’s arguments to resolve disputes before a judge who analyzes the facts and then issues a sentence. After the decision, a party who is not satisfied with the decision may appeal to a higher court.
All common law citizens are subject to the same set of laws because the law limits the application of the power of a state. However, the judiciary can review the laws to determine if it complies with the requirements of the statute.