Common Law System

Countries following a common law system are typically those that were former British colonies
or protectorates, including the United States.
Features of a common law system include:

There is not always a written constitution or codified laws;

Judicial decisions are binding decisions of the highest court can generally only be
overturned by that same court or through legislation;
Extensive freedom of contract - few provisions are implied into the contract by law
(although provisions seeking to protect private consumers may be implied);
Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore
wish to enshrine protections of its citizens in specific legislation related to the infrastructure
program being contemplated. For example, it may wish to prohibit the service provider from
cutting off the water or electricity supply of bad payers or may require that documents related to
the transaction be disclosed under a freedom of information act. There may also be legal
requirements to imply into a contract in equal bargaining provisions where one party is in a
much stronger bargaining position than the other. Please see Legislation and Regulation for
more on this.
There are few provisions implied into a contract under the common law system it is therefore
important to set out ALL the terms governing the relationship between the parties to a contract
in the contract itself. This will often result in a contract being longer than one in a civil law
country.

The ancient law of England based upon societal customs and recognized and enforced by the j
udgments and decrees of thecourts. The general body of statutes and case law that governed E
ngland and the American colonies prior to the AmericanRevolution.
The principles and rules of action, embodied in case law rather than legislative enactments, app
licable to the governmentand protection of persons and property that derive their authority from
the community customs and traditions that evolvedover the centuries as interpreted by judicial tr
ibunals.
A designation used to denote the opposite of statutory, equitable, or civil, for example, a commo
n-law action.
The common-law system prevails in England, the United States, and other countries colonized b
y England. It is distinctfrom the civil-law system, which predominates in Europe and in areas col
onized by France and Spain. The common-lawsystem is used in all the states of the United Stat
es except Louisiana, where French Civil Law combined with EnglishCriminal
Law to form a hybrid system. The common-law system is also used in Canada, except in the Pr
ovince of Quebec,where the French civil-law system prevails.
Anglo-American common law traces its roots to the medieval idea that the law as handed down
from the king's courtsrepresented the common custom of the people. It evolved chiefly from thre
e English Crown courts of the twelfth andthirteenth centuries: the Exchequer, the King's Bench,
and the Common
Pleas. These courts eventually assumedjurisdiction over disputes previously decided by local or
manorial courts, such as baronial, admiral's (maritime), guild, andforest courts, whose jurisdictio
n was limited to specific geographic or subject matter areas. Equity courts, which wereinstituted
to provide relief to litigants in cases where common-law relief was unavailable, also merged with
common-lawcourts. This consolidation of jurisdiction over most legal disputes into several courts
was the framework for the modernAnglo-American judicial system.Early common-law procedure
was governed by a complex system of Pleading, under whichonly the offenses specified in auth
orized writs could be litigated. Complainants were required to satisfy all the specificationsof a wr
it before they were allowed access to a common-law court. This system was replaced in Englan
d and in the UnitedStates during the mid-1800s. A streamlined, simplified form of pleading, kno
wn as Code
Pleading or notice pleading, wasinstituted. Code pleading requires only a plain, factual stateme
nt of the dispute by the parties and leaves the determinationof issues to the court.
Common-law courts base their decisions on prior judicial pronouncements rather than on legisla
tive enactments. Where astatute governs the dispute, judicial interpretation of that statute deter
mines how the law applies. Common-law judges relyon their predecessors' decisions of actual c
ontroversies, rather than on abstract codes or texts, to guide them in applyingthe law. Commonlaw judges find the grounds for their decisions in law reports, which contain decisions of pastcon
troversies. Under the doctrine of Stare Decisis, commonlaw judges are obliged to adhere to previously decided cases,or precedents, where the facts are
substantially the same. A court's decision is binding authority for similar cases decidedby the sa
me court or by lower courts within the same jurisdiction. The decision is not binding on courts of
higher rank withinthat jurisdiction or in other jurisdictions, but it may be considered as persuasiv
e authority.
Because common-law decisions deal with everyday situations as they occur, social changes, inv
entions, and discoveriesmake it necessary for judges sometimes to look outside reported decisi
ons for guidance in a CASE OF FIRST IMPRESSION(previously undetermined legal issue). The com
mon-law system allows judges to look to other jurisdictions or to draw uponpast or present judici

al experience for analogies to help in making a decision. This flexibility allows common law to de
al withchanges that lead to unanticipated controversies. At the same time, stare decisis provides
certainty, uniformity, andpredictability and makes for a stable legal environment.
Under a common-law system, disputes are settled through an adversarial exchange of argumen
ts and evidence. Bothparties present their cases before a neutral fact finder, either a judge or a j
ury. The judge or jury evaluates the evidence,applies the appropriate law to the facts, and rende
rs a judgment in favor of one of the parties. Following the decision, eitherparty may appeal the d
ecision to a higher court. Appellate courts in a common-law system may review only findings of l
aw,not determinations of fact.
Under common law, all citizens, including the highest-ranking officials of the government, are su
bject to the same set oflaws, and the exercise of government power is limited by those laws. Th
e judiciary may review legislation, but only todetermine whether it conforms to constitutional req
uirements.