The common law is prevalent in many English-speaking countries legal system , which not only laws , but also on relevant court decisions of the past - so-called precedents - based ( case law is) and further developed by judicial interpretation ( case law ). In this meaning it forms the opposite of the so-called civil law of the continental European countries. Civil Law is based on the codified law of the respective legislature. Judge law only plays a subordinate role there.
While finding and developing law in common law is methodologically based primarily on the formation of analogies between specific individual cases, civil law (civil law or civil law) works with (the highest possible) abstraction . With the help of the principle of analogy, the individual cases are compared for parallels and similarities; with the help of the abstraction principle, individual cases are explicitly subsumed under formulated, abstract, general legal statements that were previously brought into an orderly codification system by professional lawyers . This enables individual cases to be systematically categorized .
Within this legal system, the term common law is used on the one hand as a contrast to statute law , i. H. the codified laws passed by parliaments. On the other hand, within this second meaning it denotes the opposite of equity , i.e. H. Rules to complement the common law to compensate for hardship. If interpreted consistently, these would be caused, which is why judicial discretion, comparable to the concept of equity , is granted here.
The term Common Law has its origin in the French term comune ley (Latin communis lex ). In contrast to the different rights of the individual Germanic tribes ( Angles , Saxons , Jutes , etc.), which existed well into the Middle Ages, this meant the English common law based on unwritten habits and further developed by judicial decisions . The term common law is defined in two ways in the literature today: The broad term that prevails today is understood to mean all of English law, including equity and also the statute law , in contrast to the term civil law , which is continental European Marks right. The other, more narrowly understood term, as a counter-term to equity, denotes common law, which was formed by traveling judges ( itinerant justices or justices in eyre ) of the royal court at Westminster.
History of English Law
- Geoffrey Samuel: Common Law . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 978-1-84542-013-0 , pp. 145-160 .
- Marc Gerding: Trial by Jury. The probation of the English and US jury systems. An idea in the context of constitutional and social change. Julius Jonscher Verlag, Osnabrück 2007, ISBN 978-3-9811399-0-7 (also: Dissertation, University of Trier, 2006).
- Dominik Nagl: No Part of the Mother Country, but Distinct Dominions Legal Transfer, State Building and Governance in England, Massachusetts and South Carolina, 1630–1769. LIT, Berlin 2013, pp. 39-62, 717f. ISBN 978-3-643-11817-2 . 
- Frederick G. Kempin: Historical Introduction to Anglo-American Law. 3rd ed., West Group Publishing Group, St. Paul 1990, ISBN 978-0-314-74708-2 .
- Mary Ann Glendons, Paolo G. Carozzas, Colin B. Pickers: Comparative Legal Traditions in a Nutshell. 3rd ed., West Group Publishing Group, St. Paul 1999, ISBN 978-0-314-74708-2 .
- Theodore F. Plucknett: Concise History of the Common Law. 5th ed., Butterworth, London 1956, ISBN 0-86597-807-7 Online .
- William Holdsworth: History of English Law. 17 vols., Sweet & Maxwell, London 1903-1966, ISBN 978-0-421-31340-8 .
- John H. Baker (Ed.): Oxford History of the Laws of England. 13 vol., OUP, Oxford 2003ff., ISBN 978-0-19-925883-3 .