Breaking Down “Common Law”
According to an article on Investopedia, Common Law is defined as “a body of unwritten laws based on legal precedents established by the courts.” Common-Law influences the various decision-making processes regarding unique cases where the outcome cannot be determined using previously written rules of Law or existing statutes. In The U.S., the common law system was established as an adaptation from former British traditions. These then were integrated into the U.S. during the colonial periods of the 17th and 18th centuries. Common-Law is currently practised in many different areas globally, such as Hong Kong, New Zealand, Australia, India, Canada and the U.K. Below, we will discuss Common Law in further detail as we break down the different elements.
Common-Law, also referred to as case law, takes information from previous cases and statutes similar because there is no official code they can rely on for the particular case. The judge then will analyze which specific precedents can apply to the case at hand. Then, the cases tried in higher courts serve as an example for those tried in lower courts.
It is essential to know that Common Law is not the same as Civil Law. According to the article linked above, Civil Law is defined as “a comprehensive, codified set of legal statutes created by legislators.” The civil system details what kind of cases can be brought before the court, the processes for dealing with the claims and the various penalties for the specific circumstances. Civil Law is updated frequently, but it serves as a standardized system to provide order and eliminate discriminatory practices in Law.
Common-Law takes information from public juries and judicial authorities while also using other institutionalized opinions. Common Law and Civil Law are similar in that they intend to set up the framework for consistent outcomes. However, common Law can differ based on the different districts it is set up in. One downfall to Common Law is that the judges can significantly influence the criteria presented to a jury as they set the precedents themselves. Over time, this has been seen as being unfair, especially to marginalized groups.
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