The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's maritime , guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas.
Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.
Common law
Early common-law procedure was governed by a complex system of Pleading , under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mids.
A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law.
Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis , common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction.
The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression previously undetermined legal issue. The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision.
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This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence.
Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact.
Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements. The best of the pre-Saxon compendiums of the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English kingdom.
Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred A.
Historical Development of Civil Law
When William the Conqueror arrived in , he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English Common Law, much of which was by custom and precedent rather than by written code. Duke of Buccleuch , L. The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilised society itself, and was formed from time to time by the wisdom of man. Good sense did not come with the Conquest, or at any other one time, but grew and increased from time to time with the wisdom of mankind.
Lord Kenyon , Rex v.
Rusby , Peake's N. The common law is the custom of the kingdom, and we are bound to know it, and must be all governed by it.
The Common Law and Civil Law Traditions
The common law of England must direct the determination of a common law question. By common-law determinations we are bound; and to them we must always adhere: They are so considered, even by the Court of Chancery itself. When any doubt arises in a cause of equity concerning a point of common law, it is usually referred to the determination of a Court of Common Law. Joseph Yates , J. Taylor , 4 Burr.
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The Court of Common Pleas is the lock and key of the common law. Great attention and respect is undoubtedly due to the decisions of a Lord Chancellor: Taylor , 4 Burr, Part IV. I here give my opinion as a Common Lawyer; not presuming to say what the Court of Chancery would do upon the same question. I shall always as far as I can by law endeavour to support the common law of the land and that excellent method of trial by juries, upon which all our lives, liberties and properties depend; and I shall endeavour as far as I can to prevent the encroachment of any jurisdiction whatever that proceeds by another law and another method of trial.
Willes, Lord Chief Justice, Welles v. Trahern , Willes' Rep. Whatever is by the common law, can only be affected by statute. In a perfectly new case—a case altogether primae impressionis —I think the Judges are bound to hold fast to the principles of the common law—to remember the maxim, " Salus reipublicae suprema lex ," and if the condition be really in principle against the public good, to pronounce it in their judgment void. Sir Frederick Pollock, 1st Baronet , Brownlow v.
Egerton , 23 L. External links [ edit ]. Wikipedia has an article about: Look up common law in Wiktionary , the free dictionary. Retrieved from " https: Views Read Edit View history.
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