Common Law Tradition and Sources of Law

Common Law Tradition and Sources of Law

Common Law Tradition:
In early England, there was desire to establish a legal system that did not settle disputes by simply relying on local customs and traditions. Instead, there was desire to use a uniform legal system throughout the entire country. “What evolved was the beginning of common law, a body of general rules that applied throughout the entire English realm. Eventually, the common law tradition became part of the heritage of all nations that were once British colonies, including the United States. Because of our colonial heritage, much of American law is based on the English legal system. Knowledge of this tradition is crucial to understanding our legal system today because judges in the United States still apply common law principles when deciding cases.”1
Today, common law is defined as a system of law in which laws are developed by judges based on court decisions, and not through legislative enactments. In a common law system, judges try to be consistent by basing court decisions on prior judgments in similar cases. In instances where no similar case exists, the court’s decision can become a new law and becomes a legal precedent, a judicial decision that may be used as a standard in subsequent similar cases.
Legal precedent led to the common law doctrine known as stare decisis. This basically means that once a court has set a legal precedent for a particular case, a similar or like case must prompt the identical response from the same court or lower courts in that jurisdiction. “Therefore, judges are obligated to follow the precedents established in prior decisions based on the two aspects of stare decisis:
1. Decisions made by a higher court are binding on lower courts
2. A court should not overturn its own precedents unless there is a strong reason to do so.”2
Sources of American Law:
“There are numerous sources of American law. Primary sources of law, or sources that establish the law, include the following:
The U.S. Constitution and the constitutions of the various states
Statutes, or laws, passed by Congress and by state legislatures
Regulations created by administrative agencies, such as the U.S. Food and Drug Administration
Case law (court decisions)
Secondary sources of law are books and articles that summarize and clarify the primary sources of law and include the following:
Legal encyclopedias
Compilations (such as Restatements of the Law, which summarize court decisions on a particular topic)
Official comments to statutes
Treatises
Articles in law reviews published by law schools
Articles in other legal journals”3
Equitable and Legal Remedies:
“A remedy is the means given to a party to enforce a right or to compensate for the violation of a right.”4 Legal remedies are often in the form of monetary or property restitution, while equitable remedies are usually in the form of an injunction or an order to perform a service.

References
1Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 7.
2Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 7.
3Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. pages 4 – 5.
4Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 9.

References: 1Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 7. 2Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 7. 3Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. pages 4 – 5. 4Miller, R. L. & Jentz, G. A., Business Law Today, South-Western Cengage Learning. 9th Edition. page 9.