Where Did Common Law Come From?
If you are a legal scholar, have a casual interest in the law, or are going to court and want to understand your legal case, you may wonder where did common law come from. Common law is an alternative to a civil law system. The United States, England and several other countries are common law systems, while France is an example of a civil law system.
It is impossible to know where did common law come from originally. It is clear, however, that the use of a common law system dates back to the middle ages and was used in England. When the pilgrims came to the United States from England and set up their own government, they too established a common law system with roots in old English law. In fact, some legal definitions and concepts within the United States, especially in relation to property rights, stem directly from old English common laws.
What Is Common Law?
Common law refers to the fact that many of the laws in the United States are made by judges in individual legal cases. Common law is also called case law because of the fact that it comes directly from these judicial opinions in a given case. Common law is a different source of law than legislative law.
Within the U.S., statutes, codes and other formal laws are passed by the government. These laws are called statutory law. The laws go through a process of being proposed as a bill, being voted on by the appropriate bodies, and then being formally published in code books. These laws apply on a federal level if they are made by the federal government, or on the state level if made by the state government.
The laws passed by the legislature, however, cannot possibly cover every single situation or every eventuality. Even when those laws do cover a situation, they often have to be interpreted in light of the facts involved in the given case.
Judges hear a case when a plaintiff sues a defendant. They use the statutes, if there are any, as a guide. They then make a pronunciation in the case and they write an opinion that explains what the rule they used was and why they decided the way they did. That rule, and the opinion, then becomes the law and is used to decide future cases within the state (or on the federal level) that are similar.
Stare Decisis
Common law exists because of the concept of stare decisis or precedent. Stare decisis is a Latin phrase that essentially means let the thing stand as it is. Under this doctrine, once a judge makes a decision, that decision is legally binding on the particular court and all courts below it within the state. The legal rule established in the case will thus apply unless a higher court comes along and changes it, or a court on the same level overrules it or the legislature passes a law modifying the rule.
When the Supreme Court makes a law, therefore, this means that law essentially becomes the law for all of the U.S. unless or until the legislature makes a change. When a state court makes a law, the law applies only to courts within that state as binding, although it can be used as persuasive evidence to encourage other states to make the same law.
Therefore, when you ask where did common law come from, one answer can be that it comes from past court decisions and opinions which have become binding.