Anaya Nolan
Common law and legislation are two distinct legal concepts. Common law, also known as case law, is deeply rooted in stare decisis, which means to stand by things decided. It relies on legal precedent, where courts follow previous rulings when dealing with similar cases. On the other hand, legislation, also known as statute law, is law made by parliaments. It involves creating statutory laws that override common law in cases of conflict. While common law provides stability and consistency by adhering to precedent, legislation allows for the enactment of new laws that may address unforeseen situations. This distinction between common law and legislation forms the basis of two major legal systems: common law systems and civil law systems.
| Characteristics | Values |
|---|---|
| Definition | Common law is a legal principle that relies on caselaw and legal precedent to guide decisions. Legislation is a law made by parliaments, also known as statute law. |
| Origin | Common law originated in the practices of the courts of English kings following the Norman Conquest in 1066. Legislation is derived from British constitutional law. |
| Basis | Common law is based on precedent, meaning the judicial decisions that have already been made in similar cases. Legislation is based on parliamentary sovereignty, where parliament is sovereign or all-powerful. |
| Flexibility | Common law allows for interpretation and can adapt to unforeseen situations. Legislation may be more rigid as it is created by lawmakers and may not account for all possible scenarios. |
| Binding Nature | Common law decisions are binding only in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others. Legislation is binding and prevails over common law in case of conflict. |
| Scope | Common law is used in several countries, including the United States and the United Kingdom. Legislation varies based on the country and legislative body creating it. |
| Pros and Cons | Common law promotes stability, consistency, and efficiency. Legislation provides clear rules and codes for judges to follow in specific disputes. |
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What You'll Learn
Common law vs civil law
Common law and civil law are two different systems of law. Common law is rooted in the legal principle of stare decisis, which means "to stand by things decided" in Latin. This means that common law relies heavily on judicial precedent to guide decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. Common law originated in medieval England and was spread across the British Isles and later to colonies. Today, it is practised in several countries, including the United States.
Civil law, on the other hand, is primarily rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Unlike common law, civil law relies on legal codes that function as the primary source of law. Civil law is the most common legal system in the world, practised in about 150 countries.
One key difference between the two systems is their approach to precedent and written decisions. Common law places a strong emphasis on precedent, with courts and judges following previous decisions and rulings when dealing with similar cases. This promotes stability and consistency in the legal system. Civil law judges, on the other hand, tend to give less weight to judicial precedent and may be expressly forbidden from pronouncing general principles of law.
Another difference lies in the level of prescription. Civil law is generally more prescriptive than common law. Civil law systems have clear rules and codes that outline the procedures for handling claims and the punishment for offences. In contrast, common law is less prescriptive, with fewer provisions implied into a contract, and more freedom for interpretation.
In terms of contract enforcement, civil law jurisdictions typically enforce contracts through administrative courts, unless the contract specifies that the parties have agreed to arbitration. In common law, judicial decisions are binding and can generally only be overturned by the same court or through legislation.
Both common law and civil law systems have their advantages and disadvantages. Common law provides stability, consistency, and efficiency, as judges can quickly refer to precedent when making decisions. It also offers adaptability to unforeseen situations not contemplated by the legislature. Civil law, on the other hand, provides clear and comprehensive codes that outline the rules and procedures for judges to follow.
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Common law's flexibility
Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. It is a system that relies on case law and legal precedent to guide decisions, rather than codes and statutes. This means that judges need only follow precedent when making decisions, which can lead to shorter court proceedings, saving time and money.
The flexibility of common law allows it to address situations not originally predicted or contemplated by lawmakers. It can adapt to unforeseen circumstances and contemporary problems, such as the example of conspiracy being invented by courts in the 19th century to deal with perceived contemporary problems. This adaptability is especially important as technology continues to evolve and play a greater role in our lives.
In the case of R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge's decision demonstrated the flexibility of common law. While he began by considering the familiar authorities, he ultimately chose to look beyond them to consider the economic consequences of a judgment that prioritized legal principle over pragmatism. This flexibility allowed for a just outcome that balanced legal principles with practical considerations.
However, the flexibility of common law also has its drawbacks. The reliance on precedent can lead to the marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in divorce cases, which kept women trapped in marriages.
Overall, the flexibility of common law allows for adaptability and the consideration of contemporary circumstances, but it can also lead to the perpetuation of unfair rulings until societal changes prompt a shift in interpretation.
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Common law's stability and consistency
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided" in Latin. This principle ensures stability and consistency in the legal system by requiring courts to adhere to precedents established by previous decisions. When a similar case arises, judges are expected to align their rulings with the precedent set in previous cases. This promotes stability because it provides a predictable framework for legal decision-making, and everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints.
The stability and consistency of common law can also be attributed to its reliance on caselaw and legal precedent. Judges in common law systems refer to detailed records of previous cases and statutes to guide their decisions. This extensive body of case law provides a wealth of precedents that judges can draw upon to make informed and consistent rulings. The consistency in common law systems is further enhanced by the hierarchical structure of courts, where decisions made by higher courts are typically binding on lower courts within the same jurisdiction.
However, it is important to acknowledge that common law also allows for flexibility and adaptability. While judges generally follow precedents, they have some freedom to interpret and deviate from them, especially if the precedent is outdated or the current case significantly differs from previous cases. This adaptability ensures that common law can address unforeseen situations and evolving societal needs that may not have been contemplated by lawmakers when creating statutes.
The stability and consistency of common law have been empirically demonstrated in various studies. For example, research on the enforcement of property rights has shown that court decisions under common law are more consistent than those under civil law. Additionally, in changing economic environments, common law tends to dominate civil law due to its greater adaptability.
In summary, common law promotes stability and consistency through its adherence to stare decisis, reliance on caselaw and legal precedent, and the hierarchical structure of courts. At the same time, it maintains flexibility to address unforeseen situations and adapt to changing societal needs. This balance between stability and adaptability is a key strength of common law systems.
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Common law's inefficiency
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It relies on caselaw and legal precedent to guide decisions, rather than codes and statutes. Common law originated in medieval England and established a unified legal system, gradually replacing local folk and manorial courts.
However, common law has been criticised for its inefficiency. Here are some arguments for common law's inefficiency:
Inconsistency and Bias
Common law has been criticised for its inconsistency, particularly when compared to civil law. Civil law systems have clear rules for how judges should rule in specific disputes, whereas common law relies on precedent, which can be open to interpretation. This interpretation is influenced by the presiding judge's personal characteristics and biases. While decisions made by higher courts are binding on lower courts, lower courts can choose to modify or deviate from precedents, particularly if they are outdated or if the current case is substantially different. This can lead to inconsistencies in the application of the law, as different judges may interpret precedents differently.
Furthermore, common law has historically led to the unfair marginalisation or disempowerment of certain groups. Past decisions, even if outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in cases of divorce, a bias that kept women trapped in marriages. This demonstrates how common law's reliance on precedent can lead to inefficient and unfair outcomes.
Time-Consuming and Costly
While common law is meant to promote efficiency by allowing judges to follow precedent, this can also lead to inefficiency. When a precedent is set, it becomes the basis for future cases, and judges are expected to follow it. However, if a precedent is inefficient or outdated, judges must then spend time and resources justifying a deviation from it, which can prolong court proceedings and increase costs for all involved.
Additionally, common law's reliance on precedent can lead to an endless loop of cases, as new cases may trigger new interpretations or modifications of existing precedents. This can result in increased litigation and transaction costs for all parties involved, making the legal process more time-consuming and costly.
Wealth Redistribution
Some critics argue that common law has evolved away from efficiency and towards wealth redistribution. This shift may be driven by the actions of private litigants who generate a "demand" for the production of new legal rules. This focus on wealth redistribution could be seen as inefficient, particularly when compared to civil law systems that provide clear rules and guidance.
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Legislation's authority
Common law is a body of unwritten laws based on legal precedents. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In practice, stare decisis means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. This promotes stability and consistency in the legal system as everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints.
However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This allows the common law to adapt to situations not contemplated by the legislature at the time. While common law systems rely on caselaw and legal precedent to guide their decisions, civil law systems primarily rely on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that clearly outlines everything from the procedures for handling claims to the punishment for offences.
Statutes generally supersede common law. They may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law. For example, Congress is generally free to legislatively overrule federal courts' common law, except on Constitutional issues and some procedural issues. Similarly, in the United States, federal common law was limited to certain jurisdictions stated in the Constitution after Erie v. Tompkins overruled Swift v. Tyson.
In conclusion, while common law is a valuable system that promotes stability and consistency, it is subject to the authority of legislation. Statutes can supersede common law, and legislative bodies can overrule common law decisions made by courts. However, this varies by jurisdiction, and the specific relationship between common law and legislation may differ depending on the legal system in question.
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Frequently asked questions
Common law is a legal system that relies on past judicial decisions, or case law, to guide future decisions. It is based on the principle of stare decisis, which means "to stand by things decided" in Latin. This means that judges in common law systems are required to follow the precedents set by previous rulings when dealing with similar cases.
Legislation, also known as statute law, statutes, or Acts of Parliament, is law made by parliaments. In countries like Australia, legislation is made by the Commonwealth parliament, State parliaments, and by the legislatures of certain territories. Other bodies, such as local governments, may also be given certain powers by parliaments to create legislation.
No, common law and legislation are not the same. While both are part of a country's legal system, they serve different purposes. Common law is a type of legal system that relies on judicial precedent, while legislation refers to the laws created by a legislative body, such as a parliament. In some cases, legislation may override common law, but this depends on the specific legal system and the hierarchy of laws within it.
