What is Common Law?

What is common law? In legal law, common law refers to the body of legal law developed by judges, such as statutory, probate, and bankruptcy courts, by virtue of having established in written opinions by juries. The defining characteristic of common law is that it derives as precedent from precedents, which are past decisions of judges or other quasi-judicial bodies. Common law generally governs contemporary expectations of law.

The United States is a nation of common law institutions, which trace their roots back to the English monarchy and English common law. Historically, the judicial authorities relied on what was commonly understood to be commonsense, and rarely appealed to any higher principle. Often these were judges who had formerly exercised political power, but who were politically neutral. Thus, even though they could not prescribe laws, they could affirm or disclaim a right. This ability to attribute rights or duties to individuals comes from the same source as the power to define the parameters of natural justice.

As noted above, the framers of the US Constitution drew from common-law traditions and practices when determining the scope and limitations of the Constitution and the Bill of Rights. Because the US system is largely representative in nature, the federal courts tend to look to past decisions for precedent whenever there is a question of interpreting the Constitution or the Bill of Rights. For example, civil law decisions concerning child support and family law, both involving matters of public concern, are often considered state issues. However, if the federal courts find that a state’s divorce laws discriminate against women, or that a state has violated the guarantees of the Bill of Rights, they may look to the decisions of other states for guidance. As a result, it is not uncommon for state and federal courts to agree on a common law or common-law rule governing one or more of a number of fundamental rights or freedoms. This principle of precedent allows the courts to resist encroaching upon personal and private rights and to promote a just society.

What is common law in America is not just a list of what the courts have always done; rather, it is a list of what they have always ruled. Thus, lower courts cannot review prior decisions that have been upheld by lower courts. Lower courts are only allowed to review decisions that higher courts have not ruled against. Thus, although the decisions of lower courts are not precedents, lower courts generally follow the precedent that their higher court has previously announced.

Although some argue that the application of the common law in American society today is no different from the early days of the nation, others are not so sure. John Locke, one of the most influential philosophers of the modern era, felt that the common laws were nothing more than customary judicial authority with an emphasis on tradition. In addition, he thought that these common laws were no longer necessary because the majority of people could make their own decisions. He further reasoned that individuals would be better served when the courts left the power of making laws to the people themselves.

As noted above, the three branches of the judicial system generally follow precedent in their decisions. However, this is not always the case. Sometimes the decisions of the lower courts are overturned by higher courts, which may result in the re-hearing of an appeal. In these cases, the Supreme Court usually decides the case based on its own view of what the common law dictates.