What is Common Law and How Does It Work?


Common law is the legal and judicial system that rules the United States and most other countries where English is the primary language. The main feature of common law is that it can be influenced by precedent, meaning that the previous interpretation, ruling, decision, or opinion of a court can be used to argue, litigate, settle, or structure a legal position.

The laws of the world fall under four main categories of legal systems: civil, common, religious or statutory; although many jurisdictions are ruled by a mixture of systems. As previously mentioned, the U.S. is a common law system with the exception of Louisiana, where civil law is practiced alongside common law in some cases. Canada, a largely common law system, makes an exception for Quebec, where a hybrid civil and common law system is applied. It should be noted that both Louisiana and Quebec have strong French heritage.

The practice of common law can be considered to be pretty intricate when compared to other systems; however, its foundational principles are easy to understand. To reach a legal decision in a court of common law, the following steps must be undertaken:

* Facts are presented and declared by means of a complaint, petition or some other type of court filing.

* At least one memorandum of law must be drafted for the purpose of presenting relevant legal codes, statutes, rules, and case law.

* The next step consists of building a persuasive and logical argument that encompasses the legal research performed up to this point.

* Finally, the law must be presented as it applies to the facts based on the research and conclusions.

Where things get really complicated with regard to common law is the issue of jurisdiction and rules of procedure. Let’s say Mary Jones is arrested for disorderly conduct after she offensively protested police brutality outside of a precinct. Ms. Jones could argue that she was exercising freedom of expression by citing Cohen v. California, a landmark Supreme Court decision. The judge in this case may choose to allow this argument because the Constitution is the law of the land, but she may also reject it because the venue is a circuit criminal court where only appellate court decisions from the same jurisdiction are binding; this is a matter of procedure.

Ms. Jones may appeal her case and escalate it to the highest courts in her jurisdiction and even the Supreme Court, and there is a chance that a high court may rule that the circuit judge should have allowed the constitutional argument to stand.

Judges are given broad powers in common law systems; some legal scholars argue that they are given too much power, thus allowing precedents that end up muddying the legal landscape. This issue often results in calls to legislatures and bar associations to implement court reform measures, but such initiatives are very challenging to pursue by the very nature of common law systems.