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Encyclopedia COMMON LAW

Encyclopedia COMMON LAW



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Published by Marcos

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Published by: Marcos on Jul 31, 2009
Copyright:Attribution Non-commercial


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common law
system of law that prevails in England and in countries colonized byEngland. The name is derived from the medieval theory that the law administeredby the king’s courts represented the common custom of the realm, as opposed tothe custom of local jurisdiction that was applied in local or manorial courts. In itsearly development common law was largely a product of three English courts—King’s Bench, Exchequer, and the Court of Common Pleas—which competedsuccessfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term “common law” is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to itsstatutory law or legislation (see statute), and also to signify that part of the legalsystem that did not develop out of equity, maritime law, or other special branchesof practice.All Canada except Quebec and all of the United States except Louisianafollow common law. U.S. state statutes usually provide that the common law,equity, and statutes in effect in England in 1603, the first year of the reign of JamesI, shall be deemed part of the law of the jurisdiction. Later decisions of Englishcourts have only persuasive authority.
Characteristic Features of Common Law
The distinctive feature of common law is that it represents the law of thecourts as expressed in judicial decisions. The grounds for deciding cases are foundin precedents provided by past decisions, as contrasted to the civil law system,which is based on statutes and prescribed texts. Besides the system of judicialprecedents, other characteristics of common law are trial by jury and the doctrineof the supremacy of the law. Originally, supremacy of the law meant that not eventhe king was above the law; today it means that acts of governmental agencies aresubject to scrutiny in ordinary legal proceedings.Judicial precedents derive their force from the doctrine of stare decisis[Lat.,=stand by the decided matter], i.e., that the previous decisions of the highestcourt in the jurisdiction are binding on all other courts in the jurisdiction. Changingconditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the restof the English-speaking world. This gives the system flexibility, while generalacceptance of certain authoritative materials provides a degree of stability.Nevertheless, in many instances, the courts have failed to keep pace with socialdevelopments and it has become necessary to enact statutes to bring aboutneeded changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law.

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