About the term "common law"

The term "common law" can refer to:

1) type of law, in the development of which the main role belongs to judicial practice in solving criminal and civil cases. In this aspect, common law is primarily opposed to statutory law. The use of the term "common law" in this sense is the most common;

2) the type of legal systems developed under the influence of the English legal system. This type of law applies in those countries belonging to the Anglo-American legal family (England, USA, Canada, Australia, New Zealand, etc.). In this case, common law is primarily opposed to Romano-Germanic law.

3) the right that arose in the 10th century, as a right common to all free inhabitants of England, who were then subject to the jurisdiction (power) of the royal court. This historical understanding of common law is contrasted with the local law of certain parts of England;

4) a system of rules created by royal courts. It opposes the norms of the law of justice created by the courts of conscience headed by the Lord Chancellor.

The authority and power of common law norms are largely based on old traditions that go back to the historical past of English statehood. Therefore, the history of the development of English law in the XII-XIV centuries is of great importance for understanding the concept of "common law".

Understanding the essence of common law is also impossible without the declaratory theory of law, or the theory of the independent existence of law. Authors of the declaratory theory are considered authoritative English lawyers of the XVII-XVIII centuries- M. Hale and W. Blackstone. They summarized the centuries-old practice of common law and formulated its main provisions. The provisions are as follows:

1. judges declare or discover law. Legal norms exist objectively and independently of judges. Judicial decisions are the most authoritative evidence of the existence of law of these positions, the common law is nothing more than the law declared by judges during the entire history of the court's existence.

2. law is a custom that expresses certain values of the people. Therefore, the exclusive means of proving a certain rule of conduct as a rule of common law is to refer to evidence of the existence of this rule as a custom, which has always been observed by the subjects of legal relations. Common law, the development of which continues for many centuries, is close to customary law.

3. reasonableness is the life of law. The identification of common law with reasonableness is a consequence of the development of the theory of natural law. In English tradition, the principle of reasonableness has always been treated as a question of fact submitted to the jury. Judges can refuse to apply state legal acts on the basis of their unreasonableness;

4. the adoption of a court decision, which contains a provision that was not previously declared by judges, does not change the legal system. This is explained by the fact that the court uses the law as it was before the court decision was issued. This makes it possible to justify giving a court decision retroactive effect: the judge does not create a norm, but only clarifies the norm, which should be known to the offender from everyday life experience.

The features of common law are determined by the following provisions:

1) English law, unlike Romano-Germanic law, did not develop doctrinally — it was developed by practical