British Common Law

Aristotle, the Greek philosopher, who lived over 2,300 years ago summed up the meaning of law in one short thought: The law is reason, free from passion. The essence of British Common Law can be described that way as well. It is a law of reason that is made up of judges sitting in courts and applying their legal knowledge of legal precedent as well as common sense to the facts before them.

The English law of Wales and England preceded British Common Law and is still practiced in those countries. The oldest written law that's still in force is the Distress Act, which is part of the 1267 Statute of Marlborough. Three sections of the Magna Carta, which was originally signed in 1215, still play a large part in English Law.

The Common Law system is one that gives precedential weight to the fact that it is unfair to treat similar facts differently at different times. If the parties disagree on what the law is, a common law court looks to past precedential decisions in relevant courts. If a similar dispute has been resolved in the past, the court is obligated to follow the reasoning used in that prior decision. That legal principle is known as stare decisis.

If the court decides that the current dispute is fundamentally distinct from all other previous cases, judges have the authority to make law by establishing a precedent. Once that precedent is established, all future courts will use it to decide similar disputes. That describes the basic principles of British Common Law but in practice it's not that simple.

Decisions made in one court may not be binding in certain jurisdictions. Some courts in the same jurisdiction have more power than others. Decisions made by appellate courts are binding on lower courts in the same jurisdiction, and they are binding in future decisions in the same appellate court. The decisions in lower courts are considered non binding Sources of Law, which means the court consults in deciding a case, but does not have to apply those facts when reaching a decision.

When there is interaction between Common Law, statutory law, constitutional law and regulatory law things get even more complex in the British Common Law system, but the principle that similar cases are decided according to consistent rules prevails so similar results are achieved. That is the life blood of the British Common Law system.

The British Common Law system is drawn from even older systems of Common Law that were not nearly so formalized. Critics of British Common Law may hearken back to these systems and their simpler orientations. Such systems may be known in aggregate as private law as opposed to public or state law. They feature private negotiations between the aggrieved party and the aggressor.

In private law, the two parties may seek a third party or not, or may choose to settle the issue by force if a satisfactory result is not forthcoming. Force may include duels or vendettas. The threat of force was both a deterrent and a goad to efficient and satisfactory settlements.