Common law (also known as judicial precedent or judge-made law or case law) is the body of law developed by judges, courts, and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.
A “common law system” is a legal system that gives great precedential weight to common law, and to the style of reasoning inherited from the English legal system. Common law systems originated during the Middle Ages in England, and from there propagated to the colonies of the British Empire. England’s common law was stated in Halsbury’s Laws of England, to be nothing else but the common custom of the realm, and not to be confused with the jus commune of the Church of Rome.
Today, one third of the world’s population live in common law jurisdictions or in systems mixed with civil law, including India, the United States (both the federal system and 49 of its 50 states), Pakistan, Nigeria, Bangladesh, Canada (both the federal system and all its provinces except Quebec), Malaysia, Ghana, Australia, Sri Lanka, Hong Kong, Singapore, Burma, Ireland, Israel, New Zealand, Papua New Guinea, Jamaica, Trinidad and Tobago, Cyprus, Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Marshall Islands, Micronesia, Nauru, Palau, South Africa, Zimbabwe, Cameroon, Namibia, Liberia, Sierra Leone, Botswana, Guyana, and Fiji. Many of these countries have interesting variants on common law systems, noted in the body of the article (and linked in the list above).
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