Meaning Of Common Law
Common law is unwritten concept which is made by courts or group of judges or
quasi judicial body. It is also known as case laws because it is dependent on
the details of past or similar cases or situations as there is no legal code
that can apply to a case on the hand but if court finds out that there is no
case in the past is similar to the case or we can say that different from all
the previous cases then judges have the authority to resolve the issue. The name
is common law because it was common
in all the king's court.
The 1st definition of common law was given by Black's law dictionary and
according to it The body of law derived from judicial decisions, rather than
from statutes or constitutions
which actually mean the law which is derived by
the group of justices rather than the country's constitution or statutes or
Common law is also known as Anglo American law. US common law system is adopted
Evolution Of Common Law
The Common law of England was originally established in the period after Norman
Conquest of 1066. Before 1066 English system was different in different regions.
But even after Norman invasion there were different courts in the country apart
from royal court. In 1154, Henry II established common law by creating unified
court system. He elevated local system to national level ending local control
and establishing Jury system of citizen. The jury decided the verdict or
decision by evaluating common knowledge.By the time England's American colonies
revolted in 1776, English common-law traditions were well established in the
Judge-made common law operated as the primary source of law for several hundred
years, before Parliament acquired legislative powers to create statutory law. It
is important to understand that common law is more traditional and older law and
legislative is just a layer applied on foundation of common law.
The comprehensive compilation of centuries of common law was 1st led by Lord
Chief Justice Edward Coke, in his treatise, Institutes of the Lawes of England
in the 17th century. And the second historical treatise on common law was
written by William Blackstone called Commentaries on the Laws of England,
published in the year 1765-1769
Role Of Common Law In Judiciary
Before going ahead with role of common law in judiciary, we should know what is
It is a system of law which interprets, defends and makes law in the name of
state. It is also known as a group of judges of a country or a state.
In common law system judges are playing vital and active role in court
proceedings. It interprets law which includes statutes, regulations or
constitution. Courts also make laws on prior case laws in which legislature has
not made law.
Common Law As A Source Of Law
There are three sources of law:
- Constitution law
- Statutory law
- Case law
Here is we'll talk about case laws which is also known as common law. In England
common law is a law which is used most frequently. It makes rules and laws
according to the society and keeps in mind the morals and ethics of society. It
takes equity in consideration before making any laws and rules. Judges made it
compulsory to follow previous cases which made it uniform system of law.
Advantages Of Common Law
- Consistency: The doctrine of precedent works more logically and
effectively because it provides stability and consistency. The decisions are
based wholly on precedent not on personal views or arbitrary judgements.
- Speed And Efficiency: Common law is flexible, faster and responsive.
- Political Independence: When courts are not controlled or dominated by
any political party or ideology then it works more effectively and take actions
according to the situation even if it is against the ruling party or can make
- Unforseen Cases: Common law can be used in cases or situations which are
not foreseen by legislators. It can develop solutions for the problems of real
life or which can arise in real life.
- Equity: It is characteristic of common law system, as in this precedents
are followed everyone is then treated equally.
- Specificity: It is specific with no uncertainity.
Disadvantages Of Common Law
- Perpetuation Of Bad Decision:
If once decision is made and there is no
change in it then it will be followed in every similar cases and if the
decision was bad then bad decision was perpetuated.
- Lack Of Review:
Courts lacks opportunity and resources to consider the
changes they made in common law unlike parliamentary laws which go through
numerous investigations, reforms and consultations before it is drafted or
- Undemocratic Law:
As ministers are elected by people and are
responsible to people, judges are not which creates doubts and makes people
or citizens think that judges make rules and laws which are inconsistent to
the people at large and values.
Unlike legislation, common law is not a main
function of parliament. The courts exist primarily to administer justice and
developing common law is a secondary outcome.
- Easily Overbidden:
Parliament is supreme law making body and if it feels
that there is some problem in common or does not reflect views of people it can
abolish or change it.
Common law is a law which can change the laws in some time or according to the
the society but to do that there is a need of new cases in which the precedent
case laws to be changed. It is the most flexible and used law.