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Common law (case law)

Common law (case law)

Common law, also called case law or Anglo-American law, refers to the legal system developed in the common-law courts of England since the Middle Ages and transferred to much of the English-speaking world and Commonwealth nations, including the United States. It is distinguished from the civil-law system used in continental Europe and in the areas of other continents conquered and ruled by continental nations. The common law evolved as a body of customary law based on judicial decisions and reports of decided cases of the common-law courts. Decisions by English grand juries, kings, magistrates and trial juries were written down and eventually catalogued according to the type of case. When the courts were called on to decide similar issues in subsequent cases, they reviewed the earlier decisions, and if they found one that was logically analogous to the contemporary case, they applied the principle of the earlier decision. This doctrine is called stare decisis—Latin for “to stand by decided matters.” The common law thus consists of court opinions in specific disputes that state legal principles and must be followed in subsequent court cases about the same type of dispute. The principle of stare decisis is the essence of commonlaw jurisprudence. Judges are usually reluctant to discard well-established rules. At the same time, the principles should reflect contemporary social values, and sometimes they have to be changed or modified to keep up with the times. For this reason, judges always attempt to write reasoned judgments, especially when their decisions mark a departure from the established precedent. However, different courts apply this general policy with varying degrees of strictness. The English courts, for instance, are inclined to be more rigorous than American courts in its application. During America’s colonial period, most of the English common-law tradition and many of the English statutes became firmly entrenched, though modified to some extent in accordance with the religious and cultural beliefs of the colonists. At the time of independence, the basic legal system did not change. The major difference was the creation of the U.S. Constitution, ratified in 1789. After that, the laws of Parliament and the edicts of King George III no longer had any power in the new United States. The Constitution became the foundation on which the American legal system was built. Both the law inherited from England and that enacted by Congress and state legislatures eventually had to stand the test of constitutionality in order to determine their validity. In the centuries of American history following independence, the English common-law tradition has been modified to some extent. A number of common-law institutions have been rejected. For instance, in America, on death intestate (i.e., dying without leaving a will), all of the children inherited land and not just the eldest son, as was the case in England. Leaseholds owned by feudal landlords were replaced by freeholds in the American context, and there were no ecclesiastical (church) courts in America. Even in England, modern-day common law is considerably different from its feudal roots, and statutory law is widespread. Especially during the past century, statutes and administrative regulations have become more important as instruments to make new law and to codify (put into a written, prescriptive form) broad principles developed by the case law. Even so, judge-made law remains an important component of American law. The courts in commonlaw jurisdictions have the right to interpret statutes, but they must do so in accordance with the rules of statutory interpretation. In the United States, the general policy of the courts has been to attempt to interpret the statute in the light of the legislature’s intention. In England, on the other hand, the literal rule of interpretation is the predominant approach, i.e., the statute should be read literally, without reference to legislative intent. Many laws affecting business evolve gradually through a series of court decisions. Major U.S. businesses closely watch product-liability, worker rights, environmental, and other court judgments. Companies and consumers (through their attorneys) often choose particular court venues where recent decisions have been advantageous to their interests. One of the most widely reported issues involves tobacco companies’ litigation. After decades of winning court decisions that smokers made the choice to smoke, in the mid- 1990s, with new evidence that the companies knew their product was addictive, juries began finding in favor of smokers, creating an avalanche of lawsuits leading to the 1999 tobacco settlement.

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