Common Law Legal System

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Common Law Legal System

Common Law: The Legal System

The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. Common law can be contrasted to the civil-law system, based on ancient Roman law, found in continental Europe and elsewhere (see Civil Law; Roman Law). Whereas civil-law judges resolve disputes by referring to statutory principles arrived at in advance, common-law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants.

As the number of judicial decisions accumulate on a particular kind of dispute, general rules or precedents emerge and become guidelines for judges deciding similar cases in the future. Subsequent cases, however, may reveal new and different facts and considerations, such as changing social or technological conditions. A common-law judge is then free to depart from precedent and establish a new rule of decision, which sets a new precedent as it is accepted and used by different judges in other cases. In this manner, common law retains a dynamic for change. As the U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his book, The Common Law (1881): “The life of the [common] law has not been logic; it has been experience.”

In all common-law systems, a pyramidal structure of courts exists to define and refine the law. At the base of the pyramid are trial courts, composed of a single judge and a jury selected from local citizens. The judge controls the conduct of the court and the admission of evidence. After both sides have presented their evidence, the judge instructs the jury on the appropriate legal principles to be applied in determining the case. The jury then weighs the facts and applies the law, as stated by the judge, in order to reach a verdict or judgment.

Above the trial courts, layers of appellate courts, composed entirely of judges, exist to adjudicate disputes. These disputes center on whether or not the trial judge applied the correct principles of law. (The jury’s determination of fact and its ultimate verdict or judgment are not subject to appellate review, however, in order to preserve the independence of the jury as a check on judicial power.) The interpretations of law made by appellate courts form the precedents that govern future cases. Furthermore, the importance of a precedent for any given court depends on that court’s position in the pyramidal structure; for example, a precedent set by an appellate court has greater force in trial courts than in other appellate courts. (1)

Legal Systems and Criminal Justice

Note: there is additional information on the entries about criminal justice and the criminal justice system in this legal encyclopedia.

Previous writings that have tried to compare the criminal justice systems of different
countries have virtually all rooted themselves in the identification of various types of legalsystems or rules of law (See for example, Cole et al, 1987; Terrill, 1984; David and Brierley, 1968). Generally speaking, such studies claim that there are basically three legal families in
the world: civil law, common law, and socialist law. First, civil law refers to the Romano-Germanic family of law where “rules of law are intimately linked to ideas of justice and morality…[This family] attache[s] special importance to enacted legislation in the form of “codes” (David and Brierly, 1968:22). Second, common law is historically English and is premised on the notion that judicial decision “seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then, much less abstract than
[civil law]” (David and Brierly, 1968:24).

Common Law Legal Systems and Mixed Systems with a Common Law tradition

Classification provided by the University of Ottawa:

COMMON LAW MONOSYSTEMS

ANGUILLA (UK)
ANTIGUA AND BARBUDA
AUSTRALIA (AU)
BRITISH INDIAN OCEAN TERRITORY (UK)
BRITISH TERRITORIES OF ANTARTICA (UK)
BAHAMAS
BARBADOS
BELIZE
BERMUDA (UK)
CANADA (CD) (minus QUEBEC)
CAYMANS (UK)
COOK ISLANDS (NZ)
DOMINICA
FIJI ISLANDS
GIBRALTAR (UK)
GRENADA
GUAM (USA)
HAWAII (USA)
IRELAND
JAMAICA
KIRIBATI
MALOUINES/FALKLAND ISLES (UK)
MAN ISLE OF (UK)
MARIANA (USA)
MARSHALL ISLANDS
MONTSERRAT (UK)
NAURU
NEW ZEALAND (NZ)
NIUE ISLAND (NZ)
NORFOLK ISLAND (AU)
NORTHERN IRELAND (UK)
PALAU
PITCAIRN (UK)
SAINT HELENA (UK)
SAINT KITTS AND NEVIS
SAINT VINCENT AND THE GRANADINES
SAMOA, AMERICAN (USA)
SOUTH GEORGIA AND SANDWICH ISLANDS (UK)
TOKELAU (NZ)
TONGA
TRINIDAD AND TOBAGO
TURKS AND CAICOS (UK)
TUVALU
UNITED KINGDOM (UK) (minus SCOTLAND, GUERNESEY, JERSEY)
UNITED STATES OF AMERICA (USA) (minus LOUISIANA)
VIRGIN ISLANDS (UK)
VIRGIN ISLANDS (USA)

MIXED SYSTEMS OF CIVIL LAW AND COMMON LAW

SOUTH AFRICA
BOTSWANA
CYPRUS
GUYANA
LOUISIANA (USA)
MALTA
MAURITIUS
NAMIBIA
PHILIPPINES
PORTO RICO (ASS. USA)
QUEBEC (CD)
SAINT LUCIA
SCOTLAND (UK)
SEYCHELLES

MIXED SYSTEMS OF CIVIL LAW, COMMON LAW AND CUSTOMARY LAW

CAMEROUN
LESOTHO
SRI LANKA
VANUATU
ZIMBABWE

MIXED SYSTEMS OF COMMON LAW AND MUSLIM LAW

BANGLADESH
PAKISTAN
SINGAPORE
SUDAN

MIXED SYSTEMS OF COMMON LAW AND CUSTOMARY LAW

BHUTAN
GHANA
HONG KONG (CN)
LIBERIA
MALAWI
MICRONESIA
MYANMAR
NEPAL
PAPUA NEW GUINEA
SAMOA
SIERRA LEONE
SOLOMON ISLANDS
TANZANIA
UGANDA
ZAMBIA

MIXED SYSTEMS OF COMMON LAW, MUSLIM LAW AND CUSTOMARY LAW

BRUNEI
GAMBIA
INDIA
KENYA
MALAYSIA
NIGERIA

MIXED SYSTEMS OF COMMON LAW, CIVIL LAW, MUSLIM LAW AND CUSTOMARY LAW

BAHRAIN
QATAR
SOMALIA
YEMEN

MIXED SYSTEM OF CIVIL LAW, COMMON LAW, JEWISH LAW AND MUSLIM LAW

ISRAEL

Resources

Notes and References

  1. Encarta Online Encyclopedia

See Also

Legal Systems
Common Law Systems
Common Law
Common legal abbreviations

Further Reading

BELANGER-HARDY, L., et GRENON, A., Éléments de Common law et aperçu comparatif du droit civil québécois, Scarborough, Carswell, 1997.

BULLIER, A., La Common law, connaissance du droit, Paris, Dalloz, 2002.

CAPPALLI, R.B., The American Common law Method, New York, Transnational Publisher Inc., 1996.

COLLECTION LA Common law EN POCHE, Cowansville, Editions Yvon Blais, 1996.

COWNIE, F. and BRADNEY, A., English Legal System in Context, London, Butterworths, 1996.

DAVID, R., Droit anglais, coll. Que sais-je? no.1162, Paris, P.U.F., 1965.

DUPONT, J., The Common law Abroad, Constitutional and Legal Legacy of the British Empire (An Annotated Bibliography of Titles Relating to the Colonial Dependencies of Great Britain held by Twelve Great Law Libraries), Colorado, Fred B. Rothman Publications, 2001.

FARNSWORTH, E.A., Introduction au système juridique des États-Unis, Paris, L.G.D.J., 1986.

FAST, J., and FAST, T., The Legal Atlas of the United States, New York , Facts on File, 1997.

FINE, T.M., American Legal Systems: a Resource and Referencee Guide, Cincinnati, Anderson Publishing Co., 1997.

GILMORE, G., The Age of American Law, New Haven, Ct, Yale University Press, 1977.

HOGUE, A.R., Origins of the Common law, Hamden, Conn., Archon Books, 1974, c1966.

HOLDSWORTH, W.S., A History of English Law, London, Methuen, Sweet and Maxwell, 1956-1966 .

HOLMES, O.W., The Common law, London, Macmillan, Belknap Press of Harvard University Press, 1963.

JENKS, E and al., A Digest of English Civil law, London, Butterworths & Co., l912.

JOLOWICZ, J.A., (ed.), Droit anglais, Paris, Dalloz, 1986.

KINDER-GEST, P., Droit anglais, Paris, L.G.D.J., 1993.

LASKIN, B., The British Tradition in Canadian Law, London, Stevens, 1969.

LEVASSEUR, A., Droit des États-Unis, Paris, Dalloz, 1994.

PARTINGTON, M., Introduction to the English Legal System, New York, Oxford University Press, 2000.

PLUCKNETT, F., Concise History of the Common law, London, Butterworths, 1956.

POIRIER, D., et DEBRUCHE, A.F., Introduction générale à la Common law, Cowansville, Éditions Yvon Blais, 2005.

POTTER, H., Historical Introduction to English Law and Its Institutions, London, Sweet & Maxwell, 1958.

SEROUSSI, R., Introduction aux droit anglais et américain, 2e éd., Paris, Dunod, 1999.

SERVIDIO-DELABRE, E., Common law, Introduction to the English and American Legal Systems, Paris, Dalloz, 2004.

SIMPSON, A.W.B., Biographical Dictionary of the Common law, London, Butterworths, 1984.

TUNC, A., Droit des États-Unis, coll. Que sais-je? no. 1159, Paris, P.U.F., 1969.

VAN CAENEGEM, R.C., The Birth of the English Common law, Cambridge, Cambridge University Press, 1988.

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