Common Law

Paul O. Carrese

Common law refers to the English and Anglo-American legal tradition featuring independent courts of law and a legal profession, trial by jury of citizens to balance a judge, and liberty under rule of law—with law defined both as customs or principles affirmed by a court and statutes or codes made by a legislature. Further characteristics of common law include the selection of judges from the experienced lawyers (the bench from the bar), reliance upon precedent and traditional principles in adjudicating new cases, and a jurisprudential complexity that balances continuity and adaptability. These elements distinguish common law from the civil law, which stems from Roman law and casts judges as magistrates with administrative powers. Many citizens, lawyers, and political scientists in liberal democracies are unfamiliar with the influence of common law upon conceptions of constitutional government, individual rights, and the status of the judicial power beside the legislative and executive powers. ...

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