What are common law systems? What does 'common law' mean?

Ashok Nayak
What are common law systems? What does 'common law' mean?

: Do you know the meaning of 'common law'? This question is important from this point of view that when asked this question to an ordinary person, the answer will be that the common law is the one that is normally applied. But common law does not mean "common law" is the name of a family of different law systems in the world that follow a system of law with similar characteristics and characteristics, with small differences.

Common features used by nation-members of the family of common law are:

  • Authority of decisions given by higher courts or tribunals
  • Structure of judicial institutions
  • Protesting system of court procedures, and the role of the judge, and
  • Acts, statutes, and other legislation passed by competent authorities.

COMMON LAW SYSTEM has influenced the development of many of the world's legal systems, such as India, England, USA , Canada and Australia.

In fact, common law is considered to have originated in England, so common law was enforced wherever the British Empire established its sovereignty. We will discuss four similar features of this legal system in the succeeding paragraphs and try to understand them.

( 1 ) Authority of decisions given by higher courts and tribunals

In the "common legal system" you will see that the decisions given by the High Courts and the Supreme Court (or higher courts) are empowered and these decisions are in a powerful position to be judged by lower courts and authorities in similar cases. Compliance has to take place because the judgments of higher courts in law have the authoritative power.

If the lower court does not comply with the decisions of the higher courts, then the decisions of the lower court can be challenged and can also be dismissed. Do not think that this feature exists in other legal systems as well. Other legal systems do not imply AC fidelity over the authority of the decision of the higher courts. 

Thus, in those legal systems, the decisions of the higher courts or the higher / appeals court of the jurisdiction are not authoritative or binding on the lower courts, which are not members of the common law family. The authority of decisions of higher courts has been given the technical name of 'Judicial Precedent'.

Thus, we can say that the decisions of the higher courts are pre-judicial decisions and lower courts should follow them in similar cases. For example, in India, the decisions of the Mumbai High Court are all lower in the jurisdiction of this High Court.  Courts will be treated as 'judicial pre-judgments' and will be bound by these judgments. Thus India is a member of the common law family of the legal system.

( 2 ) Structure of judicial institutions

Another common feature of the common law family is that judges of the courts are highly skilled individuals who have specifically studied a specific area of ​​law and have practical experience in legal administration as an advocate or judge.

In other words a normal person or a scientist cannot become a judge. Rather, he should be a person with a legal background, that is, whether he is an advocate or a judge or at least he has a law degree. This feature of judgment law establishes judicial institutions as a separate group of business persons.

This is one of the reasons that the decisions they make are technical and based on the precise details as per the provisions of the law which results in better decision quality and for this reason these decisions establish authority when these are given by experienced judges or advocates Go.

As an example, you can say that judges are appointed on trial courts or district courts in India on the basis of entrance test where the minimum eligibility is degree in law and judges of high courts are selected as Advocate or Judge.  Judges with less than 10 years of experience are made.  A person from the background of justice cannot become a judge of the state and central government. Therefore the general background to the judges in the common law law is not varied but rather extremely benign.

( 3 ) Adversarial system of court procedures and role of judge

Another feature of the common law system is that court procedures are based on the respondent nature where disputed parties seek the assistance of advocates who act as defendants in court and against each other for the purpose of obtaining victory in each advocate case. Heel - fights the peak.

The judges in the courts act as a neutral observer and listen carefully to the advocates on each side.  You must have seen in the movies that when there is noise in the court or the advocate starts making unwanted comments on each other, the judges say 'order - order'.

This is not the power of a judge in general law and order but a judge cannot play an active role beyond the evidence presented by the defendant advocates. They depend on the skills of advocates who present their case to the neutral court at the best possible level.

For the judge, the fact has no meaning whether the truth of the case has been presented by the advocates. He only has to satisfy the evidence presented by the advocates. He takes no interest in presenting the truth in settling the claims of the disputed parties.

( 4 ) Acts, statutes passed by competent authorities

The last extremely important feature of the common law system is that legislations passed by competent authorities such as Parliament and the legislature etc. give an authoritative place that is binding on the judges, but whenever the judge makes any difference in the Acts or Statutes passed by the Parliament. If found, they can be appropriately promoted or explained in these acts.

In other words, judges or advocates of the common law system think that the law or act is in a very summary form and that the rules contained in these acts are of a very general nature. These general and summary rules are incapable of being used on their own under all facts and circumstances. The facts of each case are specific and the rules of general and summary form are very difficult to implement and require appropriate enrichment and interpretation.

This promotion and interpretation is as important as the provisions of the General and Abstract Rules. For example, the punishment prescribed by an Act passed by the Parliament of India for a murder case ranges from life imprisonment to death penalty. However, it has not been determined in what circumstances will be punished with life imprisonment or under which circumstances will be punished.

Judges have filled this gap and determined their own enhancement in the law that it would be appropriate to award the death penalty in "exceptional to extraordinary cases" while in other cases only life imprisonment would be punished.

Do you know ?
The origins of the Judgment Law relate to royal powers. It was developed as a system in cases where the peace of the English Empire was threatened or where there was a need or justification for the intervention of royal power in other important matters.

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