Common Law

… a core term in Governance and Institutions and Atlas100

Definition

John Brierley, writing in the Canadian Encyclopedia (reference below), describe common law as “the system of law that evolved from the decisions of the English royal courts of justice since the Norman Conquest (1066).”

He notes that today “the common law, considered more broadly to include statutes as well as decisions, applies in most English-speaking countries, including all Canadian provinces except Québec.”

Common law as opposed to statutory law and administrative law

Wikipedia (reference below) notes that:

“Much of the law in common law systems is “statutory law” enacted by a legislature, or “regulatory law” promulgated by executive branch agencies pursuant to delegation of rule-making authority from the legislature, as distinct from the common law or “case law,” that is, decisions issued by authoritative courts. This can be further differentiated into

“(a) pure common law: arising from the traditional and inherent authority of courts to define what the law is, even in the absence of an underlying statute or regulation. Examples include most criminal law and procedural law before the 20th century, and even today, most contract law and the law of torts.

“(b) interstitial common law: court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies. This body of common law, sometimes called “interstitial common law,” includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.”

Common law legal systems as opposed to civil law legal systems

Wikipedia also notes that:

“In some contexts, “common law” is used to differentiate a jurisdiction or legal system from “civil law” or “code” jurisdictions. Common law systems place great weight on court decisions, which are considered “law” with the same force of law as statutes – for nearly a millennium, common law courts have had the authority to make law where no legislative statute exists, and statutes mean what courts interpret them to mean.

“By contrast, in civil law jurisdictions (the legal tradition that prevails, or is combined with common law, in Europe and most non-Islamic, non-common law countries), courts lack authority to act if there is no statute. Judicial precedent is given less interpretive weight, which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably, whereas scholarly literature is given more weight than in common law systems. For example, the Napoleonic code expressly forbade French judges to pronounce general principles of law.”

Atlas topic, subject, and course

Courts, Tribunals, and Commissions (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Sources

John Brierley (2014), Common Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/common-law/, accessed 7 November 2016.

Wikipedia (2016), Common law, at https://en.wikipedia.org/wiki/Common_law, accessed 7 November 2016.

Page created by: Ian Clark, last modified on 7 November 2016.