| 单词 | common law | ||||||
| 释义 | common lawcommon lawcommon lawcom′mon law′n. common law
common(ˈkomən) adjectivecommon lawcommon lawcommon lawcommon law,system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king's courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts—King's Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine. The term "common law" is also used to mean the traditional, precedent-based element in the law of any common-law jurisdiction, as opposed to its statutory law or legislation (see statutestatute,in law, a formal, written enactment by the authorized powers of a state. The term is usually not applied to a written constitution but is restricted to the enactments of a legislature. ..... Click the link for more information. ), and also to signify that part of the legal system that did not develop out of equityequity, principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common law courts evolved. ..... Click the link for more information. , maritime law, or other special branches of practice. All Canada except Quebec and all of the United States except Louisiana follow common law. U.S. state statutes usually provide that the common law, equity, and statutes in effect in England in 1603, the first year of the reign of James I, shall be deemed part of the law of the jurisdiction. Later decisions of English courts have only persuasive authority. Characteristic Features of Common LawThe distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil lawcivil law, Judicial precedents derive their force from the doctrine of stare decisis [Lat.,=stand by the decided matter], i.e., that the previous decisions of the highest court in the jurisdiction are binding on all other courts in the jurisdiction. Changing conditions, however, soon make most decisions inapplicable except as a basis for analogy, and a court must therefore often look to the judicial experience of the rest of the English-speaking world. This gives the system flexibility, while general acceptance of certain authoritative materials provides a degree of stability. Nevertheless, in many instances, the courts have failed to keep pace with social developments and it has become necessary to enact statutes to bring about needed changes; indeed, in recent years statutes have superseded much of common law, notably in the fields of commercial, administrative, and criminal law. Typically, however, in statutory interpretation the courts have recourse to the doctrines of common law. Thus increased legislation has limited but has not ended judicial supremacy. Development of Common LawEarly common law was somewhat inflexible; it would not adjudicate a case that did not fall precisely under the purview of a particular writwrit, BibliographySee O. W. Holmes, The Common Law (1881; new ed., ed. by M. DeWolfe Howe, 1963, repr. 1968); T. F. Plucknett, Concise History of the Common Law (5th ed. 1956); H. Potter, Historical Introduction to English Law and Its Institutions (4th ed. 1958); A. R. Hogue, Origins of the Common Law (1966); R. C. van Caenegem, The Birth of the English Common Law (1973); J. H. Baker, The Legal Profession and the Common Law (1986); R. L. Abel and P. S. C. Lewis, ed., The Common Law World (1988). common lawa system of law, of which English law is the prime example, based on legal precedents created by judges. Thus, this system directly contrasts with more formally codified systems of ‘civil law’, such as those based on ROMAN LAW (e.g. Scottish law). In common-law systems, however, increasing legislative activity by the STATE has meant that ‘statute law’ also plays an important role within such systems.Common Lawa legal system in which judicial precedent is considered the primary source of law. Laws regulate various relationships, but they are not codified in a single system; all matters that are not regulated by law, as well as the interpretation and application of the laws, are governed by common law. Common law prevails in Great Britain (but not Scotland), the United States (except for Louisiana), Canada, Australia, New Zealand, and several other countries that are former British colonies and have adopted the British legal system. Common law originated in England in the 13th and 14th centuries on the basis of local customs and the practices of royal courts. Because procedure in these courts was extremely formalistic, a parallel system, known as the law of equity, appeared in the 14th century. In 1873 the common law and the law of equity were merged into a single system of common law, but in theory and practice there was a precise distinction between the legal institutions of each system. Common law combines formalism with almost unlimited court discretion. Ostensibly a court is bound by a decision handed down at an earlier time in a similar case by a court of the same or higher instance, but since there are a great number of precedents, a court may select those that confirm its position. Employing highly refined techniques of interpreting precedent, the court may reach a contrary decision without nullifying a previously established rule of law. Common law retains the legal institutions and terminology adopted during the period of its formation, it uses them used to regulate relations under modern capitalism. The preservation of archaic forms and of a special “legal language” and the necessity of understanding a large number of precedents make common law essentially inaccessible to those who do not have special legal training. Describing English common law, F. Engels wrote: “The lawyer is everything here; a person who has spent his time wisely enough on this legal jumble, this chaos of contradictions, is omnipotent in the English court. The ambiguity of the law has, of course, led to a belief in the authority of the decisions of earlier courts in similar cases; this is only a means of bolstering itself, because these judgments are just as mutually contradictory” (K. Marx and F. Engels, Sock, 2nd ed., vol. 1, p. 639). In the 1940’s and 1950’s many legislative acts were adopted in Great Britain, but they do not diminish the importance of common law because the application and interpretation of the law depend essentially on the courts. In the United States and other countries that have adopted common law, it has evolved in accordance with its general principles, although not all the institutions and forms that developed in Great Britain have been included in the common law of the United States and its individual states or of Canada and its provinces. In these countries the more obsolete forms have been discarded, and common law has come to be based on the precedents of the country’s own courts, although there are frequent references to English common law in court practice. REFERENCEDavid, R. Osnovnye pravovye sistemy sovremennosti. Moscow, 1967. Pages 252–332. (Translated from French.)B. O. KHALFINA common lawcommon lawcom·mon law(kom'ŏn law)common lawcommon lawCommon LawThe ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action. The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system.Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact. Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements. Further readingsCantor, Norman F. 1997. Imagining the Law: Common Law and the Foundations of the American Legal System. New York: HarperCollins. Kellogg, Frederic R. 2003. "Holmes, Common Law Theory, and Judicial Restraint." John Marshall Law Review 36 (winter): 457–505. Pound, Roscoe. 1999. The Spirit of the Common Law. New Brunswick, N.J.: Transaction. Strauss, David A. 2003. "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal 112 (May): 1717–55. Cross-referencesAdversary System; English Law. common lawn. the traditional unwritten law of England, based on custom and usage which developed over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror arrived in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English Common Law, much of which was by custom and precedent rather than by written code. By the 14th Century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana which is still influenced by the Napoleonic Code. In some states the principles of common law are so basic they are applied without reference to statute. common lawCOMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common. common lawcommon laworcase lawlaws based upon the outcome of previous court cases which serve as a precedent in guiding the judgement of present court cases. Where important legal principles are involved in a particular court case, the plaintiff or defendant may appeal against the judgement of a court to a higher court such as the High Court and then the House of Lords in the UK and finally the European Court of Justice. Compare STATUTE LAW.common lawthe body of law built up over many years as a result of previous court decisions interpreting legislation. These establish legal precedents that then need to be followed consistently in subsequent court cases. Compare STATUTE LAW.common lawA law derived from common usage, ancient customs, or the pronouncements and interpretations of courts.Contrast with code law,or civil law,which relies on statutory enactments for the articulation of rights and responsibilities, and then judicial interpretation of those statutes. English law,and almost all American law,is based on common law.The law in France is based on the Napoleonic code,and the law in Louisiana is based on that code also.(Because of the completely different underpinnings of Louisiana law,it is rare to find a lawyer or real estate agent outside the state who will offer an opinion regarding real estate law within the state.) When reading definitions of words,one should pay attention to whether the definition recites “at common law” or “at civil law.” common law
Synonyms for common law
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common law - (civil law) a law established by following earlier judicial decisions