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Common Law Doctrine In Torts

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 written laws.

Common law is also known as Anglo American law. US common law system is adopted from England.

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 colonial courts.

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 Judiciary.

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:
  1. Constitution law
  2. Statutory law
  3. 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

  1. 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.
  2. Speed And Efficiency: Common law is flexible, faster and responsive.
  3. 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 controversial laws.
  4. 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.
  5. Equity: It is characteristic of common law system, as in this precedents are followed everyone is then treated equally.
  6. Specificity: It is specific with no uncertainity.

Disadvantages Of Common Law

  1. 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.
  2. 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 introduced.
  3. 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.
  4. Secondary:
    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.
  5. 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.

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