Common law
Common law is the body of law primarily developed through judicial decisions rather than statutes.[2][3] Although common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases.[4] The presiding judge determines which precedents to apply in deciding each new case.[4]
Common law is deeply rooted in the principle of stare decisis ("to stand by things decided"),
rk NOTE: WHO DECIDED?
where courts follow precedents established by previous decisions.[5]
When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.[5]
However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.[6][7]
The common law, so named because it was common to all the king's courts across England, originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.[8][9]
It established a unified legal system, gradually supplanting the local folk courts and manorial courts.[9][8]
England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire.
Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.[10][11][12][13]
Today, approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.[14]
Terminology
According to Black's Law Dictionary, common law is "the body of law derived from judicial decisions, rather than from statutes or constitutions."[15] Legal systems that rely on common law as precedent are known as "common law jurisdictions."[15][11]
Until the early 20th century, common law was widely believed to derive its authority from ancient Anglo-Saxon customs. Well into the 19th century, it was still defined as 'unwritten law' (lex non scripta) in legal dictionaries such as
According to William Blackstone's declaratory theory the common law reaffirmed pre-existing customs but did not make new law.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of this pretense of the legal profession.[17]
Many notable writers, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer, eventually adopted the modern definition of common law as "case law" or ratio decidendi, which serves as binding precedent.[17]
rk NOTE: IMO, it is ridiculous to say, we are deciding this way because this case was already decided this way! The facts, evidence, and PEOPLE will never the same from one case to another.
Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions".[20] Justice Cardozo noted the "common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".[21]
The common law is more malleable than statutory law.
- First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.
- Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.[22]
- In contrast to common law incrementalism, the legislative process is very difficult to get started, as the work begins much earlier than just introducing a bill. Once the legislation is introduced, the process to getting it passed is long, involving the committee system, debate, the potential of conference committee, voting, and President approval. Because of the involved process, many pieces must fall into place in order for it to be passed.[23]
rk NOTE: The legislative process can only be successful if the humans involved are processing the legislation appropriately and in public view.
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Saturday, February 07, 2026 11:20AM