Common law, rooted in English legal tradition, forms the basis of many modern legal systems. It relies on judicial decisions and precedents to shape legal principles, evolving over time to address new challenges and societal changes.

Unlike civil law systems based on codified statutes, common law adapts through case-by-case rulings. This flexibility allows for nuanced interpretations, but can also lead to complexity and varying outcomes across jurisdictions.

Origins of common law

• Developed in England after the Norman Conquest in 1066
• Evolved through decisions of courts and similar tribunals rather than through legislative statutes or executive actions
• Initially based on custom and precedent rather than written laws

Key principles of common law

Stare decisis vs judicial precedent

• Stare decisis is the legal principle of determining points in litigation according to precedent
• Judicial precedent refers to the process of judges making decisions based on previous court rulings in similar cases
• Lower courts are bound by the decisions of higher courts within the same jurisdiction
• Precedents can be overturned by a higher court or legislature, but this is relatively rare

Sources of common law

Case law vs legislation

• Case law consists of the legal principles and rules derived from judicial decisions, as opposed to statutes or constitutions
• Legislation refers to laws enacted by a legislative body, such as a parliament or congress
• In common law systems, case law is the primary source of law, while legislation plays a secondary role
• Case law can interpret and apply legislation, but cannot override it

Common law reasoning

Analogical vs deductive reasoning

• Analogical reasoning involves drawing similarities between cases and applying the legal principles from one case to another
• Deductive reasoning starts with a general legal principle and applies it to a specific case
• Common law relies heavily on analogical reasoning, as judges seek to apply established legal principles to new situations

Distinguishing vs overruling precedent

• Distinguishing a precedent means finding a significant difference between the current case and the precedent, allowing the court to reach a different decision
• Overruling a precedent means that a higher court declares a previous decision to be invalid and no longer binding
• Distinguishing is more common than overruling, as it allows judges to adapt the law to new circumstances without completely rejecting established principles

Equity in common law

Role of equity vs common law

• Equity is a body of law that developed alongside common law to provide remedies where common law was inadequate or inflexible
• Equity is based on principles of fairness and justice, rather than strict legal rules
• Equity can provide remedies such as injunctions, specific performance, and restitution, which are not available under common law
• In modern common law systems, equity and common law have largely merged, but some distinctions remain

Common law legal systems

UK vs US common law

• The United Kingdom and the United States both have common law legal systems, but there are some differences
• The UK has a unitary legal system, while the US has a federal system with both federal and state courts
• The UK has a doctrine of parliamentary sovereignty, which means that legislation can override common law principles
• The US has a written constitution that limits the power of the legislature and protects individual rights

Civil law vs common law systems

Key differences in sources of law

• Civil law systems are based primarily on written codes and statutes, while common law systems rely more on case law and precedent
• In civil law systems, the primary source of law is legislation, while in common law systems, it is case law
• Civil law systems have a more rigid and structured approach to legal reasoning, while common law systems allow for more flexibility and adaptation

Role of judges vs legislators

• In civil law systems, judges are seen as interpreters of the law, while in common law systems, they are seen as creators of law through their decisions
• In civil law systems, the legislature is the primary lawmaking body, while in common law systems, judges play a more active role in shaping the law
• Civil law judges tend to be more specialized and have less discretion than common law judges

Advantages of common law

Flexibility vs predictability

• Common law is more flexible than civil law, as it can adapt to changing circumstances through the development of new legal principles
• This flexibility allows common law to evolve over time and respond to new social and technological developments
• However, the flexibility of common law can also lead to less predictability, as the outcome of a case may depend on the specific facts and the interpretation of the judge

Disadvantages of common law

Complexity vs accessibility

• Common law can be more complex than civil law, as it relies on a large body of case law and legal principles that may not be easily accessible to non-lawyers
• The complexity of common law can make it difficult for individuals to understand their legal rights and obligations
• Common law systems may require more legal expertise and resources to navigate than civil law systems

Modern developments in common law

Influence of statutes vs case law

• In recent years, there has been a trend towards greater use of legislation in common law systems, as governments seek to address social and economic issues through statutory reform
• However, case law remains an important source of law in common law systems, particularly in areas where legislation is absent or unclear
• The balance between statutes and case law varies between different common law jurisdictions and areas of law

Harmonization with civil law systems

• There has been a movement towards greater harmonization between common law and civil law systems, particularly in areas such as international trade and human rights law
• This harmonization has been facilitated by the development of international legal instruments, such as treaties and conventions, that seek to establish common legal principles across different legal systems
• However, significant differences remain between common law and civil law systems, and complete harmonization is unlikely in the near future