Common Law Perspective

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Common Law Perspective

Background

Common law is the legal tradition which evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which courts have adjudicated. [1] The common law is usually much more detailed in its prescriptions than the civil law. Common law is the foundation of private law, not only for England, Wales and Ireland, but also in forty-nine U.S. states, nine Canadian provinces and in most countries which first received that law as colonies of the British Empire and which, in many cases, have preserved it as independent States of the British Commonwealth.[2]

In addition to England and its former colonies, some legal systems were converted to the common law tradition: Guyana, the Panama Canal Zone, Florida, California, New Mexico, Arizona, Texas and other former Spanish possessions.[3]

See also the Definition of Common Law from the American Law Dictionary.

 

Common Law Perspective

Codification: Interpretation and Reasoning

Note: there is an entry about the subject of this section in this legal Encyclopedia.

Interpretation: Process and Methods

There is more general information about this topiIn relation to this entry, explore, in special, the information about: Interpretation of Statutes: Common Law and Civil Law Perspectives.

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See Also

  • Interpretation
  • Reasoning
  • Codification

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Notes

  1. William Tetley, Q.C., Mixed jurisdictions : common law vs civil law (codified and uncodified).
  2. The Private Law Dictionary, supra note 14, 72 defines “common law” as follows: “Legal system of England and of those countries which have received English law, as opposed to other legal systems, especially those evolved from Roman law. ‘The rule [respecting the transfer of ownership] which the courts of France and Québec have rejected has also managed to survive, albeit in modified form, in the more protective judicial atmosphere of the common law, where it has finally been codified in the Sale of Goods Acts of England and the other provinces of Canada’ (LE DAIN, (1952-55), 1 McGill L.J. 237 at 251). Obs. Canada is a Common law country, except in the case of Québec which, since the transfer of New France to the British Crown by the Treaty of Paris in 1763, has retained its law of French derivation in matters of ‘property and civil rights’, pursuant to the terms of the ‘Quebec Act’ of 1774.”
  3. DAVID & BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, para. 56 at 76. Quebec Research Centre of Private and Comparative Law, Private Law Dictionary and Bilingual Lexicons, 2 Ed. Revised and Enlarged, Les Editions Yvon Blais, Cowansville, Québec (1991) at 62 defines “civil law” as follows: “Law whose origin and inspiration are largely drawn from Roman law.” The definition proceeds to incorporate the following quotation from P.-A. CRÉPEAU, “Foreword” to the Report on the Quebec Civil Code, vol. 1, Draft Civil Code, Editeur officiel du Québec, Québec (1978), xxvii-xxviii: “The Civil Law is not simply a collection of rules drawn from Roman, ecclesiastical or customary law, and handed down to us in a solidified form. The Civil Law, as it was so aptly described by Professor R. DAVID […] consists essentially of a ‘style’: it is a particular mode of conception, expression and application of the law, and transcends legislative policies that change with the times in the various periods of the history of a people.” DAVID & BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, para. 15 at 19.

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