Common Legal System
INTRODUCTION:
Common law refers to the traditional legal system originating in England, which is based on societal customs and judicial decisions, rather than written statutes or codified laws. It evolves through case law, where precedents set by judicial rulings are followed and adapted over time. These legal precedents are maintained in the records of the courts and documented in yearbooks and case law reports.
Definition:
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Oxford Dictionary:
Common law is the part of English law that is derived from customs and judicial precedents rather than statutes. -
Merriam-Webster:
Common law is the body of law developed in England primarily from judicial decisions based on customs and precedents. It is unwritten and forms the basis of the English legal system.
Characteristics of Common Law:
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Unwritten or Uncodified: Common law is not always based on written statutes or a constitution.
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Binding Judicial Decisions: Decisions made by courts are binding, and the rulings of higher courts are typically followed by lower courts.
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Freedom of Contract: Common law provides fewer implied provisions in contracts compared to statutory law systems.
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Precedents: Common law is based on previous judicial decisions and established precedents. Judges follow the principles laid out in past cases when making new rulings.
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Universality: Common law applies to all persons, including the state.
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Inductive Legal Reasoning: Legal principles are derived from individual judgments and case law.
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Distinct Litigation Process: Trials are distinct from other legal procedures, often culminating in the resolution of disputes.
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Control by the Parties: The parties in a dispute typically control the litigation process, with oral arguments by counsel being a central feature.
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Cost of Litigation: The burden of litigation costs typically falls on the parties involved in the dispute.
Sources of English Common Law:
The sources of common law have evolved over time, with early influences stemming from Anglo-Saxon customs and later changes through the introduction of judicial decisions, legislation, and other legal reforms. Below are the major sources of English common law:
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Customs: Custom is the oldest and most important source of common law. According to legal scholar Holland, custom refers to the established course of conduct that is commonly observed. It represents the uniformity of conduct followed by a community or society and forms the basis for legal principles of justice and fairness. Customs help define behavior patterns deemed right or wrong and play a significant role in common law.
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Judicial Decision – Case Law: Judicial decisions, or case law, are critical sources of common law. A precedent is a judicial decision that is considered an authority on legal principles. When there is no statutory law to guide a decision, courts rely on precedents set by earlier judgments. These precedents serve as guides for future cases involving similar issues, ensuring consistency in the application of the law. Common law’s reliance on case law allows it to adapt to changing social and legal conditions.
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Roman Law: Roman law has had a significant influence on the development of common law. Even in regions that were never under Roman rule, the legal principles, terminology, and frameworks established by the Romans have shaped the structure of common law. Many terms and concepts in modern common law are derived from Roman law.
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Legislation: While common law originally evolved through judicial decisions, legislation has become increasingly important, particularly in the modern era. Over time, Parliament’s role in lawmaking has expanded, initially through ratifying royal decrees and later by initiating legislation. Statutes now play an overriding role in English law.
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Historical Documents: Important historical documents have also shaped English common law. Key texts such as the Magna Carta (1215), the Great Charter of 1297, the Petition of Rights (1627), the Habeas Corpus Act (1670), and the Bill of Rights (1689) are vital to understanding the development of English law. These documents have laid the foundation for principles of liberty, justice, and legal rights.
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Conventions and Juristic Writings: Conventions and juristic writings are sources that, while not legally binding, have had a significant influence on the development of English law and constitutional practice. Conventions refer to practices followed by custom or tradition, even though they are not written into law. Juristic writings by legal scholars also contribute to the evolution of common law by providing analysis and interpretation of legal principles.
Conclusion:
The common law system is a crucial part of the English legal system, developed over centuries through customs, judicial decisions, and historical documents. It remains a flexible and evolving system, with judicial decisions and precedents at its core. While legislation has become more important in modern times, the foundational principles of common law continue to shape the legal landscape in England and many other parts of the world.