Mountain Law: What, exactly, is ‘common law?’ | SummitDaily.com
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Mountain Law: What, exactly, is ‘common law?’

Noah Klug
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In my most recent article, I wrote about two ways of getting legally married in Colorado: by satisfying the requirements of the marriage statute or by satisfying the requirements of common-law marriage. Some readers asked me to explain why there are two ways of getting married. The answer requires an explanation of our system of “common law.”

Common law is law developed through decisions of judges rather than through laws enacted by the legislature. A common law system gives great weight to legal precedent under the principle that, if a similar dispute has been resolved in the past a certain way, the court should generally follow the earlier decision in a new case. (This principle is known by the Latin term “stare decisis,” which means “to stand by things decided.”)

The United States generally follows a common law legal system, which traces back to England. Many other countries follow a “civil law” system, based on Roman law, which allows judges to decide each case anew without being bound by precedent. Some states, including Colorado, follow civil law in limited contexts.

Much of our understanding of the common law comes from 18th century scholars who began a process of studying court decisions and trying to state what the common law is with regard to different subjects. To understand this process, imagine a hundred cases deciding whether or not two people have entered into a contract. Then take those cases and summarize them into a set of general rules stating the common law of contracts. After the law is summarized in this manner, it is possible to study the rules instead of reading all the cases.

While much of the common law has been reduced to accepted rules, there is still plenty of room for lawyers to argue about which rules should apply to given situations … and there is also room for lawyers to dispute the meaning of prior cases and whether earlier cases are similar enough to new situations that they should binding. Sometimes there are cases deciding a given issue one way and other cases deciding the same issue a contradictory way (i.e. a “split of authority.”) In that circumstance, the judge must decide which precedent to apply in a new dispute.

The existence of the common law does not infringe the ability of the legislature to pass new statutes. Statutes can supersede the common law, but unless they do so clearly, judges presume that they were not intended to limit the applicability of the common law. As in the case of marriage, it is possible to have a statute on a given subject (the marriage statute) and common law on the same subject. The two sources of law carry the same weight, and a person can satisfy (or violate) one or both of them at the same time.

Not every judicial decision is binding everywhere; for example, a decision of a state court in Missouri is not binding on a court in Colorado. Even within Colorado, the decisions of some courts have more authority than others. Decisions of the Colorado Supreme Court are binding on all other Colorado state courts including the Colorado Court of Appeals, and decisions of the Colorado of Appeals are binding on all Colorado state trial courts. (There is a similar structure for federal courts.) Even though a decision of another court may not be binding precedent, the decision may be “persuasive” to a judge deciding a similar case, meaning that the judge can consider whether to follow its reasoning.

Even though common law is rooted in antiquity, it is very much alive today. Today’s legal disputes are tomorrow’s common law.

Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, business law and litigation. He may be reached at (970)468-4953 or Noah@TheKlugLawFirm.com.


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