May 29 2010

About Common Laws

Laws are formulated by various bodies to suit various situations. There are laws that are formulated by legislative statutes, executive branch or simply the judge himself/herself. Laws formulated by a judge in a court of law or through a tribunal are referred to as common law. This system attaches great importance to how a fact that has occurred now is judged in comparison to a past similar fact. Future decisions are bound by past judgments of similar cases in relevant courts. Stare decisis refers to the basing of a decision or judgment to past similar decisions. In cases that prove to be unique in their own right, the decision of the judge as pertains to the case at hand will form a precedent which will bind similar future cases.

This precedential common law system is more complex than it looks. This is because what applies in one state may not apply in others. Furthermore, in each and every state, there are courts which are higher ranking than others. Nowhere is this more apparent than when you consider an appellate court and a lower court. The appellate court decisions are binding to the lower court in the same jurisdiction but the opposite is not true. Statutory law, regulatory law, constitutional law and common law give rise to an intricate web as they interact.

Regulatory and Statutory Laws

Laws formulated by the executive under the legislature’s authority form regulatory laws. Laws formulated by the legislature are known as statutory laws. Common or case laws are as a result of court decisions over time. Common law systems interpret the law based on age old decisions of past courts e.g. law of tort and contract law. These systems also use court decisions to interpret laws from other bodies

Civil Laws

Civil laws act together with common laws. Non Islamic and European countries come across as non common law countries. In common law systems, statutes and court decisions are comparably equal. The civil law legal system does not accord judicial precedent as much weight as is the case with common law systems. Scholarly literature influences decisions in this system.

This article is not intended as legal advice

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