The first definition of “common law” in Black`s Law Dictionary, 10th edition, 2014, is: “All law arising from judicial decisions and not from laws or constitutions; [synonym] JURISPRUDENCE, [contrast] STATUS”. [2] This usage is given as the first definition in modern legal dictionaries, is considered the most “common” usage among lawyers, and is the usage often seen in court decisions. [1] [4] [5] [20] In this connotation, “common law” distinguishes authority that a statute has promulgated. For example, in most Anglo-American jurisdictions, legislation includes “statutory law” enacted by a legislature, “regulatory law” (in the United States) or “delegated legislation” (in the United Kingdom) enacted by executive authorities pursuant to the delegation of regulatory powers by the legislature, and common law, or “jurisprudence,” that is, decisions of courts (or quasi-judicial within agencies). [21] This first connotation can be distinguished into: The English Court of Common Pleas was created after the Magna Carta to hear disputes between citizens in which the monarch had no interest. Its judges sat in open court in the Great Hall of the Royal Palace of Westminster, permanently, except during holidays between the four terms of the judicial year. In law, common law (also known as precedent, judicial law or jurisprudence) is the law created by judges and similar quasi-judicial tribunals and set out in written statements. [1] [2] [3] [4] [5] [6] The defining feature of the common law is that it sets a precedent. In cases where the parties disagree on what the law is, a common law court reviews the precedents of the competent courts and summarizes the principles of those previous cases applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually required to follow the reasoning of the previous decision (a principle known as stare decisis). However, if the court finds that the current litigation is fundamentally different from all previous cases (what is called a “first impression” question) and the legislative laws on that issue are silent or ambiguous, the judges have the power and duty to resolve the case (either party must win, and in the dispute, the judges make this decision). [7] The Court issues an opinion justifying the decision, and these reasons combine with previous decisions as precedents to bind future judges and litigants. The common law, as a right created by judges,[3][8] opposes and is on an equal footing with laws enacted through the legislative process and regulations issued by the executive (the interactions between these different sources of law are explained later in this article).
Stare decisis, the principle that cases must be decided according to uniform principles so that similar situations lead to similar results, is at the heart of all common law systems. [9] The term “common law” is often used as opposed to Roman “civil law,” and the basic processes and forms of reasoning in the two are very different. Nevertheless, there has been considerable cross-fertilization of ideas, while the two basic traditions and principles remain different. After partition, India retained its common law system. [140] Much contemporary Indian law shows considerable European and American influence. The legislation first introduced by the British is still in force today in amended form. During the drafting of the Indian constitution, the laws of Ireland, the United States, Great Britain and France were synthesized to create a refined set of Indian laws. India`s laws are also in line with UN guidelines on human rights and environmental rights. Some international trade laws, such as those on intellectual property, are also enforced in India. Common law courts generally use an adversarial system in which two parties refer their cases to a neutral judge. [116] [117] In contrast, criminal proceedings in civilian systems are conducted under an inquisitorial system in which the investigating judge fulfills two roles in developing evidence and arguments for one party and then for the other during the investigation phase.
[116] [117] In theory, codes conceived in the civil law system should go beyond compiling individual laws and instead enshrine the law in a coherent and comprehensive legal act, sometimes initiating major reforms or starting from scratch. [15] In this respect, civil codes are closer to the Reformulations of the Law, the Uniform Commercial Code (European-inspired) and the Model Penal Code in the United States. In the United States, in the United States states began codification with the New York Field Code of 1850 (which established rules of civil procedure and was inspired by European and Louisiana codes). [16] Other examples include the California Codes (1872) and Revised Federal Statutes (1874) and the current United States Code (1926), which are closer to statute books than systematic legal records similar to civil law codes. In the United States, reformulations of various fields (contracts, torts, judgments, etc.), published by the American Law Institute, bring together the common law for the field. Reformulations of the ALI are often cited by U.S. courts and lawyers for uncodified common law propositions and are considered a highly persuasive authority, just below previous binding decisions. The Corpus Juris Secundum is an encyclopedia whose main content is a compendium of common law and its variations in the various jurisdictions of the states. In practice, common law systems are much more complicated than the simplified system described above. A court`s decisions are only binding in a particular jurisdiction, and even in a particular jurisdiction, some courts have more power than others.
For example, in most jurisdictions, appellate court decisions are binding on lower courts in the same jurisdiction and future decisions of the same court of appeal, but lower court decisions are only non-binding on persuasion. The interactions between common law, constitutional, statutory and supervisory law also involve considerable complexity. The investigating judge then submits the file with his conclusions to the President of the Chamber, who decides on the case in which it has been decided that the proceedings should be initiated. Therefore, the view of the President of the Chamber on the case is not neutral and may be biased in the conduct of the proceedings after reading the file. Unlike common law procedures, in the Inquisition system, the presiding judge is not only an arbitrator and has the right to examine witnesses directly during the trial or to comment, as long as he does not comment on the guilt of the accused. The presiding judge determines which precedents apply to that particular case. The example of higher courts is binding for cases heard by lower courts. This system promotes stability and consistency in the U.S. judicial system.
However, lower courts may choose to change or depart from precedents if they are outdated or if the current case is materially different from the previous one. Lower courts may also choose to set a precedent, but this rarely happens.