Anaya Nolan
Common law is a legal system that originated in England after the Norman Conquest in 1066. It is based on the principle of stare decisis, or to stand by things decided, where courts follow precedents established by previous decisions. Common law systems give significant weight to judicial precedent and the reasoning inherited from the English legal system. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. Common law is often contrasted with statutory law, and it allows for more flexibility in interpreting and revising laws to adapt to new trends. In this context, equity law serves as a supplement to common law, enabling courts to apply justice according to natural law.
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Common law is deeply rooted in stare decisis
Common law is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. It is a system derived from judicial decisions, rather than statutes or constitutions. Common law is deeply rooted in stare decisis, a Latin term meaning "to stand by things decided" or "let the decision stand".
Stare decisis is a legal doctrine that promotes the use of prior court rulings as a source of authority when deciding similar future cases. It is based on the idea that courts should adhere to precedent, following previous decisions made by higher courts or the same court when similar issues arise. This doctrine is important as it prevents arbitrary decision-making, promotes legal stability, and ensures the consistent development of legal principles. It also reduces the need for repeated litigation, saving time and judicial resources.
In the context of common law, stare decisis is particularly relevant as it provides a framework for courts to follow when resolving legal disputes. When a similar case has been previously resolved, courts will typically align their reasoning with the precedent set in that decision. This means that judges are guided by previous rulings when interpreting the law and making new decisions.
However, it is important to note that stare decisis is not an absolute rule in common law. While it provides a strong presumption for judges to follow precedent, there are situations where judges can reinterpret and revise the law. For example, in a ""case of first impression" with no clear precedent, judges are empowered to establish new precedent. Additionally, when prior decisions are deemed ""unworkable or badly reasoned", higher courts may choose not to follow stare decisis and may reinterpret the law to adapt to new trends in legal philosophy.
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Common law is malleable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. In other words, common law is decided by judges' interpretation and application of previous rulings to new cases. When a court faces a legal argument, judges determine which precedents to apply in deciding each new case. They refer to previous similar cases and use the judgments rendered then as a basis for deciding the current case.
Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. This allows common law to gradually evolve over time, reducing disruptive effects. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law can be influenced by societal changes and shifts in popular thought, which can lead to the overturning of outdated or biased precedents.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. More recent decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, and then to Ireland and overseas colonies; this was continued by the later British Empire. Many former colonies retain the common law system today. These common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
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Common law jurisdictions
Common law systems are distinct from civil law systems, which originated in mainland Europe and rely primarily on codes and statutes. Civil law centres around a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offences. In contrast, common law systems are based on judicial decisions rather than statutes or constitutions. Common law is more malleable than statutory law, and it evolves through a series of gradual steps, allowing the law to change substantially over time without sharp breaks.
Many former colonies retain the common law system today, including the United States (except Louisiana), which originally based its common law rules on English common law. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law. Common law jurisdictions give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts and locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to predict how the next court is likely to rule. Finally, one integrates all the information gathered to determine "what the law is" and applies that law to the facts. The decisions of a court are binding only in a particular jurisdiction, and even within a jurisdiction, some courts have more power than others.
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Common law vs statutory law
There are two main types of law within the legal system: common law and statutory law. Both set standards of acceptable behaviour and justice for citizens and the government. While both are essential to how the legal system functions, they have very different origins and applications. Understanding the difference between the two can help one better understand their rights.
Common law, also known as "case law", is uncodified. It is not written out in statutes or books but is instead based on precedent, relying on judicial rulings from prior cases. These historical rulings from federal, state, or local courts set the precedent for future legal decisions. Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. 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. Common law is more malleable than statutory law. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation.
Statutory law, on the other hand, is codified and written down. It is formally passed by a legislative body at the local, state, or federal level and is also called "civil law". Statutory law is much more rigid in its application, and judges apply the law as written without relying on past cases to interpret it. Statutory law is subject to change and can be amended or repealed by lawmakers. It is both strict and adaptable, ensuring that the law remains relevant to the people it governs.
To summarise, common law is unwritten and based on precedent, while statutory law is written and created by legislative bodies. Common law evolves through court decisions and can be reinterpreted by judges, whereas statutory law is applied as written and can be modified or updated by later legislatures.
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Common law and equity
Common law is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions. Common law is derived from judicial decisions, and legal systems that rely on it as precedent are known as "common law jurisdictions". Common law evolves gradually, allowing the law to change substantially over time without sharp breaks, thus reducing disruptive effects.
Equity is a body of law that was developed in the English Court of Chancery, which was administered by the Chancellor. Equity is now administered concurrently with common law in common law jurisdictions. Equity is distinct from the common law remedy of damages and is subject to the discretion of the judge. It provides a remedy where common law does not, or it provides a more suitable remedy than common law. For example, an injunction, an equitable remedy, can be sought for an anticipatory breach of contract, which is a common law claim.
In the 15th century, equity was seen as a rival system to common law, and conflict arose between the two. This conflict was resolved by the Judicature Acts in the 1870s, which allowed the Supreme Court to administer both rules of common law and equity. However, the reforms did not fuse the two bodies of law, and jurisdictions that have inherited the common law system differ in their treatment of equity. For example, in England and Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law.
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Frequently asked questions
Common law is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided", where courts follow precedents established by previous decisions.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. More recent decisions and decisions of higher courts or legislatures carry more weight. Finally, one integrates all the information gathered and applies the law to the facts.
Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention to adapt to new trends.
