There are several legal systems around the world but out of the bunch, the most known ones are the civil law system, common law system, or the combination of both. In the previous article, we learned about the civil law system but in this article, we would explore a bit about the latter system.
A common law system is built on the concept of judicial precedent in general. Because the decisions of a court are cited as precedent in future cases, judges play an active role in defining the law in this area.
- The common law, so termed because it was “common” to all of England’s kings’ courts, arising from the customs of the English kings’ courts in the decades after the Norman Conquest in 1066.
- The extent to which common law borrowed from older Anglo-Saxon traditions like the jury, ordeals, the penalty of outlawry, and writs — all of which were incorporated into Norman common law – is still debated.
- The first King to integrate these accumulated norms and traditions and create courts and a legal system that applied to the entire realm was William the Conqueror, hence the title “common law.”
- To offset the sometimes harsh common law, the common law system emerged alongside the courts of equity, which devised remedies to legal challenges based on justice and equality. Because the decisions of these courts were documented and published, the judiciary could look back at prior rulings (precedents) and apply them to the current case.
- Common-Law is a system of law formed from judicial decisions, commonly referred to as case law.
- The decisions of these courts were documented and published, the judiciary could look back at prior rulings (precedents) and apply them to the current case.
- As a result, judicial precedent is based on the idea of stare decisis, which is Latin for “let the judgment stand.” There are now certain rules in the common law.
- In other words, if a similar disagreement has already been handled by another court, the Court is obligated to accept the logic employed in the previous decision.
- Although it is imperative to note that only particular sections of a judgment can become precedent, and only if it is issued by a higher court.
Salient Features of the System
- There is not always a written constitution or codified laws;
- The “lower” court is obligated to follow the precedent set by the “higher” court in a previous decision.
- The decisions by the higher court are binding in nature and can not be refuted by lower courts.
- Generally, the common law system differs from a civil law system in that it is less prescriptive.
To learn about the civil law system, click on this link.