Origin of Common Law
The origin of the common law system is believed to be in 11th Century England after the Norman conquest (1066 A.D.). The derivation of the term “common law” dates back to the 12th Century when secular English Tribunals were established by King Henry II of England. The common law system was ‘common’ was throughout the realm. The common law system was systematically created by King’s Judges by following each other’s decisions to create a unified system of law. Subsequently, the system of precedents was established in the 12th and the 13th Century.
Application of the Common Law
The application of common law is limited to civil cases. Common-Law was originally devised as a means to reimburse/compensate someone for the wrongful acts of someone else known as torts. This includes both intentional torts and torts caused by rash conduct or negligence. Common law was also developed with aim of recognizing and regulating contracts. The procedure followed in the common law system is known as the adversarial system. The adversarial system basically requires the opposing sides to bring out relevant information and to present and cross-examine witnesses.
Rigidity is a distinctive characteristic of Common Law
The common law system revolves around the system of Judicial Precedents. According to Salmond, “A Judicial Precedent is a judicial decision which in itself is a principle.” The emphasis is laid on the significance of Judicial Precedent as an authority for deciding a similar set of facts and circumstances in the same manner on the same principle. Because of this emphasis laid on Judicial Precedents, the common law system became quite rigid and was marred by a number deficiency. For example, in the case of English Contract Law, the sole emphasis was laid on the doctrine of privity of contract and the concept of trust was not recognized. This limited redressal in case of contractual dispute and subsequent dissatisfaction of common folk.
Stare Decisis is well established in the common law
Stare Decisis is a Latin phrase meaning “to stand by things (previously) decided. In a legal sense, it means that court rulings should be guided by the previous judicial decisions, that is, Judicial Precedents. The principle of Stare Decisis is applied with the aim to ensure efficiency and uniformity in court decisions. In the case of countries following a common law system such as India, the United Kingdom, the United States of America, etc., it is customary common law for judges to follow the Judicial Precedents when making rulings in similar cases. For example, Under the Indian Constitution, Article 141 establishes the doctrine of Stare Decisis. Article 141 of the Indian constitution states that “The Law declared by the Supreme Court shall be binding on all courts within the territory of India.” The High and the other Lower Courts are bound by the decisions of the Supreme Court of India. Similarly, the decisions of the High Court are binding on all the courts below it within its jurisdiction. This indicates the application of Stare Decisis in the common law systems.
There is lack of a conceptual structure in Common Law
In the case of common law, there is a lack of a conceptual structure. In the case of Civil Law, there are rules, codes, and statutes, and a conceptual structure is followed in applying these codes by the court’s codes. On the other hand, the law in the common law system has been dominantly created by the Judicial Precedents, that is, previously decided judicial disputes. This has led to a lack of conceptual structure in common law systems. In the case of a common-law system, instead of logically connected rules and concepts, a comparison with previous judicial decisions is made leading to irregularity and lack of organization of concepts.
