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Common Law, or case law, is a body of enforcable laws arising from the practice of precedent. Say what?
Common law, as a phrase, is bandied about quite a bit; common law wife/husband, disputes in common law etc. But what exactly does the phrase mean?
In Ireland, Common Law is not the only source of law. There are three others; legislation, Constitutional Law and European Law. But to the layman Common Law is the most interesting.
At the heart of the issue is the legal practice and understanding of the term “precedent”. Essentially, this refers to rulings by judges being given due to there existing a precedent which ought to be applied. A previous ruling broke new legal ground in such a matter and set the tone for those that follow, proscribing how the matter ought to be dealt with. As such, common law describes a body of laws compiled by, and appended with, rulings made by the judiciary in individual specific cases. These rulings are then entered into the legal canon.
Common law’s origins lie with the Norman conquest of Britain. As part of the takeover the new lords sought to impose a legal system of their own construction. Common law provided a way for the new laws to grow in a fluid way, bolstered, in its incipient stages at least, by healthy doses of cronyism. The Normans, after all, chose who the judges were, and thereby whom they would favour in their judgements.
This is not to say there is anything inherently corrupt about the process as it exists today. The Normans merely set out to create a brand new legal framework. Common law offered a way to quickly build a tradition and heritage. In a short space of time the new lords were able to solidify and legitimise their influence and expansion.
Common Law was extensively codified by Henry II, the Plantagenet King of England. It offered him the chance to have one kingdom wide, coherent and unified legal platform. One common law.
Due to this heritage Common Law still exists in most of the Anglophone world, especially those that were once part of the British Empire. It is efficient and fair, having been revised and adapted over time. Common law still has its place in the states in the United States which were not originally French and also Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.
The real strength of Common Law and why it persists today is its non-theoretical real-world basis. It is the ongoing judicial response to everyday issues.
With a fast growth of a comprehensive body of laws, and the ability to deal with issues as they arise, it is easy to see why so many places still use the practice.
As with any legal practice the body of laws and related theory are vast. This only scratches the very slightest layer of the surface.
The Irish Legal System, Byrne and McCutcheon, Butterworths, 1996
This article was posted by Ronan McDonnell on
Monday, January 24th, 2011 at
It is archived in Culture, History, Ireland, Legal and tagged common law, framework, Ireland, judiciary, legal, legislation.
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