What is Common Law?
Also known as case law or precedent, Common Law is developed by judges through the decisions rendered by courts or similar tribunals. This characteristic is held separate from other forms of law, which are typically developed through an executive branch action or legislative statutes. As a result of the formation, a “common law system” is a legal system that places a significant weight on common law, on the basic premise that it is unfair to treat similar legal matters differently on different occasions.
In a legal matter where the opposing parties disagree on what the underlying law is, a common law court will look into past precedential decisions of relevant courts. If a similar legal matter or dispute has been resolved in the past, the court of common law is bound to follow similar reasoning used in the prior decision. That being said, if the court finds the current dispute to be fundamentally distinct from all previous cases, the presiding judge possesses the authority and duty to make a law through the creation of precedent. Therefore, when the new decision is viewed as a precedent it will bind future courts presiding over similar matters.
In general practice, a common law system is considerably more complicated than the aforementioned idealized legal system. The decisions of a legal forum are binding in a particular jurisdiction; even in a given jurisdiction, some courts will hold more power than other. For instance, in the majority of jurisdictions, a decision rendered by an appellate court are binding on lower courts located in the same jurisdiction and on future decisions rendered by the same appellate court.
A common law legal system is widely used, particular in England, where the scope of law originated during the middle Ages.
Common Law vs. Statutory and Regulatory law:
The majority of scopes of law in Anglo-American jurisdictions will include statutory law, which is enacted predominantly through legislation, regulatory law promulgated by the underlying executive branch and common law, which stems from previous court decisions or interpretations.
A pure common law court will arise from the inherent and traditional authority of the court system is; using this precedent, a common law system will evaluate the underlying legal matter to define what the law is, even in absence of an underlying statute.
Common Law Judicial Review:
Judicial review undertaken by a Common Law court system is considered to be heavily reliant on past judicial decision and sentencing in lieu of stipulations and legal tenets expressed in the textual incarnation of the law; this protocol of judicial review that is undertaken by Common Law legal system is a primary differentiation between jurisdictions employing Common Law and those employing Civil Law:
Civil Law enacts its judicial review in accordance to statutory precepts and tenets expressed within written and textual legislature; although justices within a Civil Law system may be entitled to expand or interpret the law with regard to their sentencing, the formulation of judicial review resides primarily on a textual, referential basis
Common Law is considered to rely more heavily – if not completely – on the legal statutes and stipulations inherent to Case Law, which is a legal field within which past sentencing and review are employed as legal guidelines for sentencing; in contrast to Civil Law, many consider Common Law to allow for a more constant restructuring of the justice system undertaken within that jurisdiction