is primarily based on precedents that are set by prior court cases with similar
circumstances. This is opposed to statutory law that is formulated by a series
of formal rules and regulations enacted by the Government. Oftentimes, common
law will interact with other systems of law to form decisions.
in an area such as contract law, most of these regulations will exist in common
law, not legislation. However, in an area such as the sale of international
goods, there is legislation that will define the boundaries of the regulations.
When a case is brought before a judge, though, it will generally be ruled by a
combination of this legislation and past decisions. These cases will be decided
primarily by applying past precedent by analogy.
Common law will also interact with Constitutional
law when a court makes important decisions. The U.S. Constitution is a document
that broadly outlines the powers of the Government in making laws. Common law
is basically how the courts will interpret these laws to make decisions.
mostly affects decisions that are made in State courts, and all of these
decisions must be made within the scope of the Constitution. Constitutional law
does not grant State courts the power to declare a law as unconstitutional.
However, they do have the power to create new law to a certain extent.
When a judge
rules on a case of first impression, the judge is essentially making new laws to
which subsequent cases with similar circumstances will be bound. A case of
first impression refers to one where the circumstances are so unique that there
is no existing precedent that will influence the judge’s decision. In this
case, the judge will examine the facts of the case in accordance with Constitutional
law in order to make a decision.
Many of the rules and regulations within Constitutional
law are based on previously established common law. Codification, which is the
process of creating a statute that will explicitly state a rule or regulation
to make law, is a process that is heavily based on the precedent of common law.
The common law will interpret Constitutional law in order to make it applicable
to individual cases.
that is sometimes used is that of the First Amendment to the Constitution. This
Amendment states that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof”. To
actually understand this clause of the Constitution, one must turn to the
precedents set by common law to see how it is applied in specific cases.