What is common law? In legal theory, common law is any body of law developed by judges, juries, lawyers, and similar quasi-legal tribunals by virtue of actually stating in court written opinions. The defining feature of common law is that it is precedent. This means that what a jury or judge decides, is also the law.
One problem with relying on common law to decide cases is that many people mistakenly believe that the decisions come from some magically external source, that there is no need for proof, and therefore, their decisions are exempt from scrutiny. However, this is just not true. There have been many instances where the decisions of the courts were overturned on appeal because of lack of evidence, or for other improper reasons. Therefore, the very basis of judicial authority – the idea that the decisions of the judicial authorities are imbibed with all the meaning of “right” through the Constitution and the precedents of previous judgments – is itself threatened by the very process of which it is created.
Another problem with relying on the courts to apply the common law is that while they are very thorough, particularly when dealing with complex issues such as corporate law and labor law, they are not all equal. For instance, the corporate courts tend to be quite friendlier to the corporations than the civil courts are. Because of this, corporations can often easily defeat their own claims through the use of sham witnesses and so forth.
Lastly, people frequently become confused by the very fact that there are several different types of courts, including common-law and civil. The two differ because of the difference in the sources of precedents. Civil courts are established by decisions of common-law courts, which act in the place of the common-law courts and are therefore not supervised by them. Common-law courts, on the other hand, receive recommendations from the higher court (usually a supreme court) for the determination of its cases, and then it acts in the place of the higher court’s decisions. Thus, there is a conflict between the two.
Because of these flaws, the current study of the common laws has been revolutionized. First, researchers have been able to realize that there are actually two kinds of courts: civil and criminal. Because of this realization, the types of cases which are tried in civil courts do not conform to the …