Common Law

Common Law

Common law is a set of rules that are recognized and followed by society or individual groups, and most of them are independent of the state enacted laws. Common law derives from all kinds of custom and practices and differs in various places around the world and can be used as evidence to make decisions in the courts. It usually comes into being in the long living and production process gradually, and it has a long-lasting influence on society and people. It has limits in different industries or various places and common law in one place might not apply to the case at another location. Most of the common laws are not like statute laws, which are in written form and have legal effect. Common law is more like a social regulation which is between the moral rule and the law. It is acceptable but not compulsory. Generally, it gains the legal effect by state recognition or social recognition, and the enacted law will be taken prior to the common law. As long as common law conflicts with the enacted law, it will lose the legal effect. Sometimes, parties involved can also decide whether to apply the common law through agreements to give enough respect to each other. Besides that, the new common law takes precedence over the old one in consideration of the social, political, economic, and cultural development.

Common law plays a significant role in creation and perfection of the Law. Our laws are intended for providing better service to people and the country, rather than curbing the custom and culture. The creation of laws should follow the principle that it serves where it comes. It will be pointless if the law deviates from the real situation. Common law can more or less reflect the local custom and culture since it is based on the local practices. Thus, it can function as a bridge to integrate the traditional local cultures with the statute laws, which can make the law more practical and trustful, and more in accordance with national conditions and public opinions. Given that, common law is very helpful to establish a better law.

Common law can not only ease the plight brought by the rigidity of the strict rules of law but also place some restrictions on the statute laws. It is because common law is a significant source of law. In history, many laws originated from common laws and then finally developed into the written laws. When there is no applicable law for a case, the judges can consider the common law for reference. When the law goes against the local culture, the judge can also make some adaptations to stand in line with public opinions. In a sense, common laws can supplement the law. When some conflicts are difficult to solve by law, we can resort to the common laws.

Common law contributes to the diversity of laws and the transmission of traditional cultures. While the statute laws are made by the state, the common laws are formed from the practices by people.  Common laws are relatively extensive and stable but at the same time, they are also regional and might be only applicable to a single area or one case. Common laws are more flexible and specific than statute laws so that they can push forward the diversity of laws. Also, as a direct reflection of the local culture and part of people’s life, common laws help the transmission of local cultures.

To conclude, common law, as a theoretical basis of law, still plays an unneglectable role in the realization of law today. Both common laws and statute laws help to regulate people’s life and social development.