The main
concept of common law is that it is developed on a decision-based, case-by-case
basis. This means that common law is an ever evolving area of the legal system
because new cases are always being decided. Based on this aspect, common law
differentiates from statutory law. Statutory laws are not generally subject to
change based on rulings. These laws will be more solid.
Courts in
common law systems are able to reinterpret certain laws in order to reflect
changes in society. However, these changes will not generally come in a drastic
form, but are instead gradually made over a period of time. When changes are
made to statutory laws, it will normally come in a more abrupt manner than
common law evolution.
An example
of this type of change is the evolution of liability for negligence in common
law. Historically, a third party would not be able to collect for negligence,
even if the defendant’s actions harmed the plaintiff. Through a series of court
decisions, this was changed. The evolution of the common law allows for
corrections to be made when the legal system is not operating correctly.
Most of the time, when making important decisions
judges will reference previous cases that have similar circumstances. The
theory is that if that another case with similar circumstances was ruled in a
certain way, this should remain consistent for all subsequent cases. When
judges rule on a case where there is little or no precedent, this is often
called a case of first impression. This means that a judge can reference prior
court cases, but there is no case that exists with the same circumstances and
there is, therefore, no precedent. This means that the judge is in a sense
responsible for making laws. As a result of the judgment on this case of first
impression, all subsequent court cases will be ruled in a similar manner. This
ensures a certain stability in the legal system.
Common law systems may give a considerable amount
of authority to judges when decisions are made. However, because these
decisions are based on prior decisions, judges must abide by binding precedent.
This attempts to avoid any bias or corruption on the part of judges. A judge
will always write a legal opinion when making a major decision in a common law
jurisdiction.
A legal
opinion is a written publication that will explain a judge’s ruling. It is in
the legal opinion that judges will reference what precedents were used to form
the decision. This ensures that a ruling was issued on legitimate terms, and
the judge is able to reference similar situations where this ruling was held.
