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A common law legal system is a system of law characterized by case law which
is law developed by judges through decisions of courts and similar tribunals.1
Common law systems also include statutes enacted by legislative bodies, though
those statutes typically either codify judicial decisions or fill in areas of
the law not covered by case law. In contrast to common law systems, civil law
(codified/continental law) systems are founded on a set of legal codes,2 which
are organized laws that attempt to cover exhaustively the various legal domains,
and is characterized by an absence of precedent in the judicial application of
those codes.3 In the modern period, both systems tend to include administrative
regulations which may also be codified.4
A common law system is a legal system that gives great potential precedential weight to common law,5 on the principle that it is unfair to treat similar facts differently on different occasions.6 The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent.7 Thereafter, the new decision becomes precedent, and will bind future courts.
In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court; but decisions of lower courts are only non-binding persuasive authorities. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
One third of the world's population (approximately 2.3 billion people) live in common law jurisdictions or in systems mixed with civil law. Particularly common law is in England where it originated in the Middle Ages,8 and in countries that trace their legal heritage to England as former colonies of the British Empire, including India,9 the United States (with the partial exception of Louisiana10), Pakistan,11 Nigeria, Bangladesh, Canada (with the exception of Quebec, which uses a mix of civil law in areas of provincial jurisdiction and common law in areas of federal jurisdiction), Malaysia, Ghana, Australia,12 Sri Lanka, Hong Kong, Singapore, Burma, Ireland, New Zealand, Jamaica, Trinidad and Tobago, Cyprus, Barbados,13 South Africa, Zimbabwe, Cameroon, Namibia, Liberia, Sierra Leone, Botswana, Guyana and Israel.
In a common law jurisdiction several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.24 Finally, one integrates all the lines drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts. Download