Introduction
Known as precedent or case law; judges developed common law through their tribunal decisions. Practically, common law systems are legal systems that render more weight to common laws based on the fact that it is fair enough to deal with similar incidents in the same way. Common law applies mostly within the jurisdiction. Judges write down their viewpoints about different cases that bind lower courts in that jurisdiction to create common law. Property, torts and contracts are the basic foundation of the common law.
Generally, common law is defined as a legal system created by the decisions previously made in tribunals; however, legislators and similar government officials do not impose it. Based on a strict reasoning called casuistry, applicable laws are evaluated using the circumstances of a case, and the case in question is evaluated by reference to past similar cases. As a legal term, common law is not originated from equity or any other special branch of law; the brief explanations of common law are statutes and this is the reason behind being non-demonstrative. A statute is expressed through codification, so it is comprehended within existing laws.
Originated in the UK, and which was later adopted in the U.S, as a major legal system of the modern law, common law was initially founded to reflect the social customs. Throughout the ages, common laws were supplanted by statute law and clarified by the higher courts judgments. Originated from broad principles, common law implies that every defendant who enters a criminal trial is presumed innocent until proven guilty.
Based on custom, precedent and legal principles developed in earlier case law, common law was developed in England primarily from judicial decisions; it is a judicially created law that is developed on a case by case basis. Although being well known, we do not find common law in the written records of the realm; judges form its enactments from time to time based on their wisdom and experience of cases similarity. Frequently, it is defined as unwritten law because it is written by judges, but not by elected politicians. Geographically speaking, common law represents the traditional law of a region created by local judges based on their decisions regarding individual cases or disputes.
Conclusion
Common law was first originated in the UK as a legal system, side by side with the civil law, to reflect social customs. It is written by judges not by elected politicians and this is why it is mostly called the unwritten law. Judges depend on their own views regarding similar cases to create the common law by evaluating new cases by reference to past similar cases; they depend mostly on custom, precedent and legal principles developed in earlier case in writing it.
References
- Broekman, J. M. (2011). The semiotics of law in legal education. Dordrecht: Springer Science+Business Media B.V..
- Eisenberg, M. A. (1988). The nature of the common law. Cambridge, Mass.: Harvard University Press.
- Hale, M., & Gray, C. M. (1971). The history of the common law of England. Chicago: University of Chicago Press.
