Common Law

Common law is a legal system that gives great weight to precedents (legal principles or rules decided by a judge that may apply to subsequent cases of similar issues or facts). Due to its feature being a body of precedents that bind on future decisions, common law is also known as case law. 

History

Most legal history textbooks relate the emergence of the English Common Law system to the Norman conquest led by William, Duke of Normandy during the Battle of Hastings in 1066 England. The conquest was an important event in English history, as it largely removed the native ruling class and replaced it with French-speaking monarchy, aristocracy and clerical hierarchy. After William was crowned as King of England, he made several changes to the existing English laws and customs to maintain the Normans' control over the English lands. The Domesday Book recorded that these changes subsequently caused the near-total elimination of the old English aristocracy, the loss of English control over the Catholic church, and only 5% of land in England managed to stay within the English hands.

Before the Normans arrived, the Anglo-Saxons had a more sophisticated government in England compared to Normandy. All laws were local and enforced in the manorial, shire and hundred courts. England used to be divided into many different "shires" - each shire was administrated by a county court which were run by officials known as "sheriffs". Written documentation formed a strong feature of the early English legal system and was made an efficient tool of governance. This sophisticated government system was further developed by the Normans after the invasion - with introductions to forest laws; accounting; the usage of Latin replacing Old English as the official language of documents; and centralisation of the autonomous shire system.

Common law did not begin to take place in England until the reign of Henry II of England in 1150. During the 12th and 13th century, the king's judges tend to follow each other's decision in order to create a unified common law throughout England. Collective judicial decisions were based on traditions, customs and previously accepted rules or principles.


Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges, known as General Eyres, would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. The rule of stare decisis thus developed from this practice, whereby a judge would be bound to follow the rule of an earlier judge.


Features

• Sources of Common Law are derived from precedent, legislation and rules of equity.
• Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge.

Sources 

1) Precedent / case law 

English Common Law system is largely based on judge-made law. Pronouncement of decisions made by a judge of a higher court may be binding on other judges of the correlative or lower courts. The pronouncement must have formed the ratio decidendi of the case (reasoning behind the decision) and must be a matter pertaining to law rather than a factual decision. Ratio  decidendi comprises the legal principles and rules which are necessary to solve the problem before the court, therefore it is binding. If the pronouncement is obiter dictum (something about the law said in passing, or "by the way") which contains words strictly unnecessary to solve the problem before the court, it will not be binding. However, judges may treat obiter dictum as of "persuasive authority" as they may read and be influenced by them even though they are not obliged to follow them.

2) Legislation

Legislation is law which has been enacted by a legislature or a governing body (such as the Parliament). An item of parliamentary legislation which has been converted from a bill to a statute is known as an Act of Parliament. Comparing legislation with common law, statutes generally have the power to change the established common law, but the common law cannot overrule or change statues. A statute can only be overrruled or amended by another, later statute. Any legislation made by a person or body other than the legislature but with the legislature's authority is known as delegated legislation. Delegated legislation is usually made by an executive authority given power by the primary legislation (the primary legislature or parent Act) in order to implement and administrate the requirements of that primary legislation through a statutory instrument or by-law.

3) Equity

Before 1873, England had two parallel court systems: courts of "law" that could only award money damages, and courts of "equity" that could issue injunctive relief. Equity is derived from the term "fair" or "without bias". The rules of equity evolved from the exercise of litigants who were allowed to appeal directly to the King if a judge's decision was considered unfair, or if changes in certain case law is not quick enough to solve a problem. People started petitioning the King for relief against unfair judgments and as the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor. When a litigant wished to claim right on his land or obtain relief for a civil wrong imposed on him he was entitled to petition for a legal remedy upon demanding and paying for a writ (a formal written order issued by a court). However, the writ sometimes produced unjust results as it is limited to enumerated rights. Even if a perfect writ had been issued, the litigant will have no case if there is no single form of action combining the claim and the rights affected. As the law of equity developed, it began to rival and conflict with the common law. Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and apply justice in accordance with natural law.

The maxims of equity were eventually developed by the courts of equity in deciding cases before them:-

1. Equity regards done what ought to be done
2. Equity will not suffer a wrong to be without a remedy
3. Equity delights in equality
4. One who seeks equity must do equity
5. Equity aids the vigilant, not those who slumber on their rights
6. Equity imputes an intent to fulfill an obligation
7. Equity acts in personam.
8. Equity abhors a forfeiture
9. Equity does not require an idle gesture
10. One who comes into equity must come with clean hands
11. Equity delights to do justice and not by halves
12. Equity will take jurisdiction to avoid a multiplicity of suits
13. Equity follows the law
14. Equity will not aid a volunteer
15. Where equities are equal, the law will prevail
16. Between equal equities the first in order of time shall prevail
17. Equity will not complete an imperfect gift
18. Equity will not allow a statute to be used as a cloak for fraud
19. Equity will not allow a trust to fail for want of a trustee

Present day

The common law constitutes the basis of the legal systems of English-speaking countries or Commonwealth countries. Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India uses common law except in the state of Goa which retains the Portuguese civil code. Guyana and Saint Lucia have mixed Common Law and Civil Law systems.