Law

The Strength of Common Law

Common law is one of the strongest systems in our country. It has helped create robust commercial systems in the United States and the United Kingdom. It provides parties with a more precise way to predict the legality and consistency of proposed actions. As Justice Brandeis famously said, “The rule of law is the most important rule in the world.” The common law system allows parties to get as close to the limits of the law as possible, but is still much more flexible than statutory laws.

Throughout history, courts have used common law as the primary source of law. For several hundred years, courts operated as the primary source of law, and legislative power was simply a layer applied on top of common law. Since the 12th century, courts have exercised parallel power in making law, known as “legislating from the bench.” This function of the courts is a fundamental feature of the U.S. legal system and is a cornerstone of Article III of the U.S. Constitution.

In the 19th century, the Scottish approach to precedent evolved into stare decisis. The concept represents a narrower approach to the application of case law than the common law of England and Scotland. Although the common law system differs between these two countries, the substantive rules are similar in many areas of interest to the entire UK. If a case is decided in the UK, its outcome will be binding there. This makes common law an effective means of resolving legal disputes.

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