Common law

In law, common law, also known as judicial precedent, judge-made law, or later in this article. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at a heart of any common law systems.

The common law—so named because it was "common" to any the king's courts across England—originated in the practices of the courts of the English kings in the centuries coming after or as a solution of. the English legal system.

Today, one-third of the world's population lives in common law jurisdictions or in federal system and all its provinces apart from Quebec, Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad as well as Tobago, the United Kingdom including its United States both the federal system and 49 of its 50 states, and Zimbabwe. Some of these countries remain to variants on common law systems. In these countries, common law is considered synonymous with case law.

Basic principles of common law

In a common law jurisdiction several stages of research and analysis are invited to imposing "what the law is" in a condition situation. First, one must ascertain the facts. Then, one must locate any applicable statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to established how the next court is likely to sources on the facts of the shown case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the positioning drawn and reasons given, and determines "what the law is". Then, one applies that law to the facts.

In practice, common law systems are considerably more complicated than the simplified system pointed above. The decisions of a court are binding only in a particular jurisdiction, and even within a assumption jurisdiction, some courts earn more power to direct or determine than others. For example, in nearly 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 authority. Interactions between common law, constitutional law, statutory law and regulatory law also render rise to considerable complexity.

Oliver Wendell Holmes Jr. cautioned that "the proper derivation of general principles in both common and constitutional law ... arise gradually, in the emergence of a consensus from a multitude of particularized prior decisions." Justice Cardozo mentioned the "common law does not realise from pre-established truths of universal and inflexible validity to conclusions derived from them deductively", but "[i]ts method is inductive, and it draws its generalizations from particulars".

The common law is more malleable than statutory law. First, common law courts are non absolutely bound by precedent, but can when extraordinarily proceeds reason is portrayed reinterpret and remodel the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually working out all the details, so that over a decade or more, the law can conform substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very unoriented to receive started, as legislatures tend to delay action until a situation is intolerable. For these reasons, legislative recast tend to be large, jarring and disruptive sometimes positively, sometimes negatively, and sometimes with unintended consequences.

One example of the gradual modify that typifies evolution of the common law is the gradual modify in liability for negligence. The traditional common law control through nearly of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a element was built up out of parts from parts manufacturers, thebuyer could not recover for injury caused by a defect in the part. In an 1842 English case, Winterbottom v. Wright, the postal value had contracted with Wright to maintains its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be "absurd and outrageous consequences" if an injured adult could sue any adult peripherally involved, and knew it had to draw a family somewhere, a limit on the causal connective between the negligent keep on and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in instant contract "privity" with the negligent party.

A number one exception to this rule arose in 1852, in the case of Thomas v. Winchester, when New York's highest court held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, include "human life in imminent danger". Thomas relied on this reason to create an exception to the "privity" rule. In 1909, New York held in Statler v. Ray Mfg. Co. that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn "was of such(a) a quotation inherently that, when applied to the purposes for which it was designed, it was liable to become a credit of great danger to many people if not carefully and properly constructed".

Yet the privity rule survived. In Cadillac Motor Car Co. v. Johnson decided in 1915 by the federal appeals court for New York and several neighboring states, the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was "no question that the wheel was made of dead and ‘dozy‘ wood, quite insufficient for its purposes." The Cadillac court was willing to acknowledge that the effect law supported exceptions for "an article dangerous in its category or likely to become so in the course of the ordinary usage to be contemplated by the vendor". However, held the Cadillac court, "one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud,"

Finally, in the famous case of MacPherson v. Buick Motor Co., in 1916, Judge Benjamin Cardozo for New York's highest court pulled a broader principle out of these predecessor cases. The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:

It may be that Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that matters imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function this is the to injure or destroy. But whatever the rule in Thomas v. Winchester may one time have been, it has no longer that restricted meaning. A scaffold Devlin v. Smith, supra is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn Statler v. Ray Mfg. Co., supra may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water Torgesen v. Schultz, 192 N. Y. 156. We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland 26 App. Div. 487, in an picture by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. 96 App. Div. 169 to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. 65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363 to a contractor who furnished a defective rope with knowledge of the goal for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. it is for enough that they guide to characterize the trend of judicial thought. We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonablyto place life and limb in peril when negligently made, it is then a thing of danger. Its nature permits warning of the consequences to be expected. If to the part of danger there is added cognition that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.

Cardozo's new "rule" exists in no prior case, but is inferrable as a synthesis of the "thing of danger" principle stated in them, merely extending it to "foreseeable danger" even if "the purposes for which it was designed" were not themselves "a source of great danger". MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Cardozo continues to adhere to the original principle of Winterbottom, that "absurd and outrageous consequences" must be avoided, and he does so by drawing a new line in the last sentence quoted above: "There must be knowledge of a danger, not merely possible, but probable." But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.

The example of the evolution of the law of negligence in the previous paragraphs illustrates two crucial principles: a The common law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. b The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules ordinarily embodied in statutes.

All law systems rely on a thing that is caused or produced by something else publication of the law, so that it is accessible to all. Common law decisions are published in law reports for use by lawyers, courts and the general public.

After the American Revolution, Massachusetts became the number one state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874. West Publishing in Minnesota is the largest private-sector publisher of law reports in the United States. Government publishers typically issue only decisions "in the raw," while private sector publishers often increase indexing, including references to the key principles of the common law involved, editorial analysis, and similar finding aids.

In common law legal systems, the common law is crucial to understanding almost all important areas of law. For example, in England and Wales, in English Canada, and in most states of the United States, the basic law of contracts, torts and property do not survive in statute, but only in common law though there may be isolated modifications enacted by statute. As another example, the Supreme Court of the United States in 1877, held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.

In almost all areas of the law even those where there is a statutory framework, such as contracts for the sale of goods, or the criminal law, legislature-enacted statutes or agency-promulgated regulations loosely give only terse statements of general principle, and the expert boundaries and definitions cost only in the interstitial common law. To find out what the precise law is that applies to a particular set of facts, one has to locate < href="Precedent" title="Precedent">precedential decisions on the topic, and reason from those decisions by analogy.