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10/31/2017 What Is Common Law


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What Is Common Law

Common law is the legal system used in Great Britain and the United States (except the state of
Louisiana). According to common law, judges must consider the decisions of earlier courts
(precedents) about similar cases when making their own decisions. People sometimes call
common law "customary law" because judges consider the customs (common practices) of the
country when making decisions. In many countries the justice system combines elements of civil
law (private cases), which was handed down from Roman law, and common law, which
developed in England. In a combination system, private cases are judged in civil courts;
however, cases involving crimes against society (criminal law) are tried in criminal courts,
where decisions are based on precedents.

History Of Common Law.

These are rules of behavior which develop in a community without being deliberately invented.
There are two main types of customs: General customs and local customs.

General Customs
Historically these are believed to have been very important in that they were, effectively, the
basis of our common law. It is thought that following the Norman conquest (as the country was
gradually brought under centralised government) the judges appointed by the kings to travel
around the land making decisions in the kings name based at least some of thier decisions on the
common customs. This idea caused Lord Justice Coke in the 17th century to describe these
customs as being one of the main triangles of the laws of England. However, other
commentators dispute this theory.

Today, Michael Zander writes that probably a high proportion of the so-called customs were
almost certainly invented by the judges. In any event, it is accepted that general customs have
long since been absorbed into legislation or case law and are no longer a creative source of law.

Local Customs 1/7
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This is the term used where a person claims that he is entitled to some local right, such as a right
of way or a right to use land in a particular way, because this what has always happened locally.
Such customs are in exception to the general law of the land, and will only operate in that
particular area.

Since there were (or still are) exceptions to the general common law, the judges, from the
earliest times, established a series of rigorous tests or hurdles that had to be passed before they
recognised any local customs. These tests still exist today and are used on the rear occasions that
a claim to right comes before the courts because of a local custom. That tests are as follows:

The customs must have existed since time immemorial

The customs must have been exercised peaceably, openly and as of right

The custom must be definite as to locality, nature and scope

The customs must be reasonable.

It is very unusual for a new custom to be considered by the courts today and even rarer for the
courts to decide that it will be recognised as a valid custom, but there have been some such
cases. For example in Egerton v Harding (1974) the court decided that there was a customary
duty to fence land againts cattle straying from the common. Another case was New Windsor
Corporation v Mellor (1974) where a local authority was prevented from building on land
because the local people proved that was a custom that they had the right to use the land for
lawful sports.

Although customs may develop, they are not part of the law until recognised by the courts; it is
the judges who decide which customs will be recognised as enforceable at law.

Common Law
Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo-
Saxon times there were local courts which decided disputes, but it was not until after the
Norman conquest in 1066 that a more organised system of courts emerged. This was because
the Norman kings realised that control of the country would be easier if they controlled, among
other things, the legal system. The first Norman king, William the conqueror, set up the Curia
Regis (the kings Court) and appointed his own judges. The nobles who had a dispute were
encouraged to apply to have the king (or his judges) decide the matter.

Development Of Common Law

As well as this central court, the judges were sent to major towns to decide any important cases.
This meant that judges travelled from london all round the country that was under the control
of the king. In the time of Henry II (1154-89) these tours became more regular and Henry
divided up the country into circuits or areas for the judges to visit. Initially the judges would
use the local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is
believed that the judges on their return to Westminster in London would discuss the laws or
customs they had used, and the decision they had made, with each other. Gradually, the judges
selected the best customs and these were then used by all the judges throughout the country.
This had the effect that the law became uniform or common through the whole country, and it
is from here that the phrase common law seems to have developed.

Advantages & Disadvantages Of Common 2/7
10/31/2017 What Is Common Law

Advantages & Disadvantages Of Common

The term "common law" has it's origins in England in the 11th century. Even today in the US,
some common law principles from the original English law are applicable while alongside it is
the growing body of common law which is being set as a part of stare decisis i.e. the judicial
systems decisions and interpretation of statutory law provisions by judges, are becoming a part
of the common law. Other judges look to these decisions as a guideline or as a necessary
precedent to follow, while making their own decisions.

There are both advantages and disadvantages to a legal system based on common law or


i) Equity:

Equity is to correct common law defects and mitigate its harshness. It can be used for all classes
of people unlike the common law. The law was very technical in common law and if there was
error in the formalities the person making the claim would lose the case. In this case, equity
rewards the claimants better. The only remedy that common law could give was damages
that is an order that the defendant pay a sum of money to the claimant by way of
compensation. The chancellor also developed new remedies which were able to compensate the
appelantives more fully than the common law remedy of damages. The main equitable remedies
were injunctions, specific performance, rescission, rectification. Equity is not a complete system
of law, it merely fills the gaps of common law and soften the strict rules of common law.

ii) Precedents:

As these decisions are based on previous judgements, it's more convenient to follow this process
through. People know what to expect; there is an element of predictability. The process is easier
and more practical as there are no fixed, lengthy rules but real situations that have already been

iii) Efficient:

As there is already a basis on which the judgment will be passed, a basic framework so to say,
the judicial process becomes so much faster. There is certain efficiency in the process as
compared to what the procedure would be like in comparison with a system that did not follow
the precedent based system. Plus these decisions are based on a precedent and so have a stronger


i) Perpetuation of bad decisions:

The downside of a jugdment that has been made, its that it will be superseded again by other
judges even if the decision is defective. And in the common law its about following precedents.
This will take a long time to happen. So this directly uphelds a bad decision.

ii) in the absence of precedent: 3/7
10/31/2017 What Is Common Law

People will not know what to predict when they come to a situation that needs to be taken to
court. When there is no precedents judges make decisions based on the evidence given and as far
as possible come to a fair judgement, sometimes a view of the evidence by the judge may bring
about a wrong judgment.

iii) Need for records:

Because these precedents are to be followed by all other courts or in many cases, lengthy,
detailed records have to be maintained. And to make easy the accessing of these cases and
previous decisions, uniform indexing methods have to be created and followed diligently.

Comparison between

The Common Law Tradition (Hong Kong) and The FCC Tradition (United States)


Advantages of Common Law:

THERE is a certainty of outcome for similar cases. It is highly probable that every future case
that is similar in nature will be judged in the same way.

Common Law is dynamic and not closed by statute or precedent. New rules of law will from
time to time be authoritatively laid down to meet new circumstance and the changing needs of

Common Law accumulates a great wealth of detailed rules for reference. It is much richer in
detail than the code of law.

COMMON LAW is practical in nature. The rules laid down are the product, not of academic
speculation but of difficulties that have actually risen. Thus, it is in touch with everyday life.

Disadvantages of Common Law:

Common Law is rigid once a rule is established. This causes inflexibility, which can be a problem
especially when the decision is outdated or used out of context.

Common Law can be illogical since the rule is dependent on the context, situation, judge or
society in which it is judged.

The collection of rules that comprise common law are both vast in size and enormously
complex. It may be difficult and(/) cases for
quite time consuming to search through the relevant
a just verdict.

Judges may shy away from creating new precedences in areas of new technology for fear of
upsetting a burgeoning industry. Rather than creating ripples, judges tend to be conservative in
their rulings and may not provide adequate justice to the actual case.

Characteristic Features Of Common Law

The distinctive feature of common law is that it represents the law of the courts as expressed in
judicial decisions. Judges decide cases cases found in precedents provided by past decisions, in
contrast to the civil law system, which is based on statutes and prescribed texts. Other than the
system of judicial precedents, other characteristics of common law are trial by jury and the 4/7
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doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the
king was above the law but today it means that acts of governmental agencies are subject to
scrutiny in ordinary legal proceedings.

Judicial precedents derive their force from the doctrine of stare decisis. For example, that the
previous decisions of the highest court in the jurisdiction are binding on all the subordinate
courts. However, different conditions soon make most decisions inapplicable except as a basis for
analogy, and a court must therefore often look to the judicial experience of the rest of the
English-speaking world. This provides a more flexible system, while general acceptance of
certain authoritative materials provides a degree of stability. Nevertheless, there are times, the
courts have failed to keep pace with social developments and it has become necessary to legislate
to bring about the changes needed. Indeed, in recent years statutes have superseded much of
common law, notably in the fields of commercial, administrative, and criminal law. Typically,
however, in statutory interpretation the courts have recourse to the doctrines of common law.
Thus increased legislation has limited but has not ended judicial supremacy.

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