Common Laws

In implementing a system of law to be used for gluing together the social compact of a country and providing some measure of assurance of safety and fair treatment for its citizens, the specific questions which arise in regards to various areas of life must be considered alongside larger issues of the general philosophical approach to be taken in the drafting of such laws. One of the basic philosophical issues related to the creation of laws is that of the relative importance to be granted to the primacy of abstract principles in operating a system of law versus that of the importance of an approach based on applied experience. A system of law based on the concept of the former such approach is referred to as civil law, while one which is based on a system defined along the latter lines is known as a system of common law. Institutions of common laws can be found most prominently as embodied in the legal cultures of practice and principle of the United States and the United Kingdom. Other countries where systems based on common law can be found in effect in many of the nations that at one time were under the sway of the United Kingdom during its tenure of supremacy in administering the British Empire.

The basic technique through which the experiential bias of a system based on common laws is enacted is in the reliance on the decisions of courts and judges for deciding the implementation of laws, which builds up the body of past precedents in legal decisions that are referred to as common law. One of the virtues for this system of common law which is claimed for it by its proponents is that of the ability to react to new kinds of legal issues and areas of concern by affording judges the ability to decide that the past common laws which have been formed through the operation of judicial decision making are not applicable to the new situation and thus form a new precedent which in the future can be relied upon as a cornerstone of common law.

The ways in which the common law system has been formulated in the specific legal cultures of various countries has varied to a wide degree. In the United States, for instance, higher federal courts do not have the ability to form their own regulations as based on common laws, but are given wide latitude in interpreting the Constitution and subsequent legislation passed into being. Prior to 1938, common laws in the United States were implemented somewhat differently, in that courts possessed the power to form new decisions in areas related to state law on which no statutes had yet been formed, thereby affording a plentiful source of common laws, but this power was curbed by the 1938 Supreme Court decision “Erie Railroad Co. v. Tompkins,” which affected the existence of common laws when it decided that “There is no federal general common law.”