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What Is Common Law?

Judges often create common law by writing opinions about cases that bind lower courts in that jurisdiction.
The flag of Hong Kong. Despite being a Special Administrative Region of China, Hong Kong has a common law system.
Common law is the basis of the legal system in Canada.
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  • Originally Written By: Venus D.
  • Revised By: A. Joseph
  • Edited By: Niki Foster
  • Last Modified Date: 26 November 2014
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Common law is a legal system that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials. The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Decisions that were made about similar cases are valuable, and the case in question is evaluated on the basis of past cases. The strength of the similarity among the cases, in turn, strengthens the reasoning based on them.

The term "common law" also underlines the fact that this type of law did not originate from equity, maritime and other special branches of law. Statutes serve as brief explanations of law and therefore are not very explanatory. Codification is the process by which a statute is passed, expressed within a single document, so that it is understood within existing law rather than creating the need for new laws.

Varies by Jurisdiction

In most cases, common law applies only within that jurisdiction. Judges often create common law by writing opinions about cases that bind lower courts in that jurisdiction. The foundation for this type of law is formed by torts, property and contracts.

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English Legal System

In another sense, common law is the basis of the legal system in England and many other English-speaking countries, especially those that were former British colonies, including most of Canada, most of the United States, Hong Kong, the Philippines and Sri Lanka. Common law was invented in England by three courts — King's Bench, Exchequer and the Court of Common Pleas — to establish a system of law that could supersede the judgments of local courts. Also, in terms of its application to civil law, common law was used to compensate people who suffered wrongful civil acts, known as torts.

Not all former British colonies and English-speaking countries have legal systems based on common law. Louisiana, Quebec and South Africa are said to have pluralistic legal systems combining civil, common, customary and religious law. Furthermore, Louisiana and Quebec use French law, and the South African legal system is based on Roman-Dutch law. India uses a mixture of Hindu and English law.

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BHillChic3x3
Post 14

I have lived with my husband an Army Vet for 16 years. 12 of those years he was an active duty soldier. For the first nine years, I was legally separated from my last husband. I have been married to my current husband for seven years.

Now we are getting divorced because he committed domestic violence against me. I had to flee to Florida where my family is and he is still in Alabama in our house. We bought the house before we got married, but we were living together and I was raising his kids. In the divorce, how will the law count the first nine years because I was contributing money but the house is is his name only? Will I still get Tricare after we are divorced?

anon212612
Post 6

I am 18 year old girl and due to family restrictions and torture, I have decided to leave home but my parents are very bad. They will take action against this. They will search for me and make my life and and they can even bribe police. I want to leave my home and seek the help of any organization which can fight against my parents.

raresteak
Post 4

@ginsberg05- It is important to note that while domestic partnerships can be recognized as legal marriage in those 13 states, most do not recognize same-sex cohabitative relationships as grounds for common-law marriage. The Federal Defense of Marriage Act permits any state to disallow same-sex marriages from another state. This ruling essentially prohibits the federal government from acknowledging any same-sex marriages.

ginsberg05
Post 3

Common-law (de facto) marriage is the state of a domestic partnership that occurs long enough to obtain a legal marriage status. Common-law marriage, in its recognized jurisdictions, does not require a civil or marriage ceremony of any kind. Cohabitation alone does not secure the status of common-law marriage.

In order to be considered "common-law married" by the 13 U.S. states that recognize it, both parties must consent to the "marriage," be of legal age to wed, and be completely qualified to enter into a marriage (this includes being of sound mind, being unmarried, etc.). The 13 states that honor common-law marriage are Alabama, Georgia, Colorado, Idaho, Iowa, Kansas, Montana, Oklahoma, Ohio, Pennsylvania, Rhode Island, South Carolina, North Carolina, Texas, and the District of Columbia.

anon71101
Post 2

i am living in chawl system house along with 70 other tenants with ownership and we are paying assessment/ room tax to mahanagarpalika for the last four years. Now the landlord is saying i am the landlord. what can i do?

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