Common Law

Topics: Common law, Law, Contract Pages: 4 (1140 words) Published: December 3, 2012
The term "common law" originally derives from the 1150s and 1160s, when Henry II of England established the secular English tribunals. The "common law" was the law that emerged as "common" throughout the realm (as distinct from the various legal codes that preceded it, such as Mercian law, the Danelaw and the law of Wessex)[43] as the king's judges followed each other's decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries,[44] as the collective judicial decisions that were based in tradition, custom and precedent.[45]

Common law, also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals, as opposed to statutes adopted through the legislative process orregulations issued by the executive branch.[1]

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law[48] -- "legislating from the bench" is a traditional and essential function of courts,

In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.[20] Finally, one integrates all the lines drawn and reasons given, and...
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