A Look at How the Common Law Works

The common law is a legal system that traces its roots back many centuries. Today, common law systems exist across the globe and are often the most effective method for resolving disputes between individuals and companies.

The Common Law: A Look at How It Works
Common law is a body of law that is based on legal precedents established by courts and public juries. These decisions are called "stare decisis" and can sometimes prove the inspiration for new legislation to be enacted.

Unlike statutes, which must be passed by lawmakers in order to become law, common law can evolve over time as judges and other professionals learn more about the law's underlying principles. This can be beneficial for a variety of reasons.

Flexibility: The common law is more flexible than statutory laws, since it can respond to changing trends in society and politics.

It also allows for the development of new rules and policies that may not be possible in a legislative setting. This is especially useful in the healthcare sector where a variety of new policies and procedures are being implemented all the time.

Judicial Opinions: Judges have the ability to formulate opinions that explain why a particular case was decided in the way it was. These opinions are a great resource for future cases because they explain the underlying rationale of the law's decision.

Court Reports: In many jurisdictions, court reports are published as an official government function, but private sector publishers such as West Publishing in Minnesota have become the largest source of these types of reports. These reports, in addition to containing the judicial decisions involved, often include indexing and editorial analysis.

The Restatements: Edited by the American Law Institute, these publications compile case law in a specific area. They are generally considered persuasive authority, just below binding precedential decisions.

In some jurisdictions, courts rely heavily on scholarly work in resolving conflicts between parties. In other jurisdictions, this is less the case. In both systems, the treatises are primarily used for finding aids to locate relevant cases and, rarely, to state overarching principles that (in the author's opinion) explain the results of these cases.

This difference in cultural approach is reflected in how the law is taught and practiced. Whereas in civil law systems, lawyers and judges are required to read scholarly work, those in common law jurisdictions typically read these books as mere "finding aids" to locate relevant cases. The scholarly analysis that is most important in a common law jurisdiction is almost always factual findings, policy justification, or the history and evolution of the law.

The common law is a very complex system and one that takes a long time to develop. Elected judges often have incentives to please powerful constituencies that result in class-action mechanisms, punitive damages, and other rules that are not necessarily just. This is why it can be difficult to get just laws developed through common-law processes.