Common Law's Statute Origin: A Possibility?

Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is not compiled into rules and statutes but relies on past judicial opinions and interpretations from judicial authorities and public juries. Common law is more flexible than statutory law as it can respond to changes in society and higher courts can overrule prior decisions. Common law has also furnished the basis for new legislation to be written. For example, the UK has long had a common-law offence of outraging public decency, which was recently used to prosecute a new intrusive activity called upskirting. This led to the Voyeurism (Offences) Act being passed in 2019, which officially made upskirting a crime.

Common law vs civil law

Common law and civil law are the two main legal systems used throughout the world today. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is rooted in England and is also practised in the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Civil law, on the other hand, is generally practised in much of Europe and elsewhere in the world.

A key difference between the two systems is their approach to decision-making. Common law relies on detailed records of similar situations and statutes, as there is no official legal code that can be applied to a specific case. The judge presiding over a case determines which precedents apply. In civil law, however, there is a comprehensive, codified set of legal statutes created by legislators, clearly defining the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law systems have clear rules for how judges need to rule in specific disputes.

Another distinction is the flexibility of the two systems. Common law is more flexible and adaptable to unforeseen situations, as it can respond to changes in society. Higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to make changes in statutes and codes. In contrast, civil law systems are more rigid and require lawmakers to pass changes in statutes and codes, which can be a lengthy process.

The appointment of judges also varies between the two systems. Under common law, judges are typically appointed after successful legal careers, while civil law jurisdictions tend to appoint recent university graduates. This difference can impact a judge's worldview and approach to legal disputes.

It is worth noting that the United States, despite having many common law states, is not a pure common law system. It operates under a dual system of both common and civil law, with numerous codified statutes that courts must consider. Additionally, in civil law jurisdictions, a separate administrative law often governs PPP arrangements, and contracts are enforced by administrative courts unless arbitration is specified.

Common law and statutes in the US

The US legal system operates under a dual system of both common and civil law. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society and does not require lawmakers to pass changes in statutes and codes. In the US, common law rules were originally fashioned based on English common law, but the American legal system has since matured to create its own common law rules.

Common law is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Civil law systems have clear rules for how judges need to rule in specific disputes, and unlike common law, civil law court decisions are not binding in other cases, even if the facts are similar.

In the US, common law and statutes interact in complex ways. While common law is based on past judicial opinions and not subject to the same interpretation as civil law, it is not always separate from statutes. For example, at the state level, legislatures often codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it, or to replace the outcome with legislation. An example of this is the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, which articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section of the Labor Code, 2750.3, which codified and expanded on the Dynamex holding.

Additionally, while common law is based on past judicial opinions, judges can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. This flexibility allows common law to address situations not originally predicted by lawmakers and gives rise to the complexity of interactions between common law and statutory law.

Common law in Canada

Canada's legal system is based on a combination of common law and civil law. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law and is derived from a multitude of particularised prior decisions. Common law originated in the practices of the English king's courts and was brought to Canada in the 17th and 18th centuries by explorers and colonists.

All but one of the provinces of Canada use a common law system for civil matters. Each province and territory is considered a separate jurisdiction with respect to case law, and each has its own procedural law in civil matters, as well as statutorily created provincial courts and superior trial courts with inherent jurisdiction. These Courts of Appeal are then subject to the Supreme Court of Canada for the appeal of their decisions. The exception to the use of common law is Quebec, which uses a French-heritage civil law system for issues arising within provincial jurisdiction, such as property ownership and contracts.

In the context of Canadian law, the term "common law" is also used to refer to a person living with someone they are not legally married to but are in a conjugal relationship with. This is also known as a non-ceremonial or de facto marriage. The criteria for what constitutes a common-law relationship vary by province, but it typically involves continuous cohabitation for a certain period, usually 12 months, or having a child together. Common-law spouses are generally not treated the same as legally married spouses, especially when it comes to inheritance laws and succession laws.

Common law and marriage

Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system that relies on caselaw and legal precedent to guide decisions, rather than codes and statutes. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is more malleable than statutory law and can respond to changes in society.

Common law marriage, also known as non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union. It is a marriage that takes legal effect without the prerequisites of a marriage license or participation in a marriage ceremony. The marriage occurs when two people who are legally capable of being married, and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple.

In medieval Europe, marriage came under the jurisdiction of canon law, which recognized as a valid marriage one in which the parties stated that they took one another as wife and husband, even in the absence of any witnesses. In ancient Greece and Rome, marriages were private agreements between individuals and estates. In the United States, common law marriage is not recognized in all 50 states. For example, it is recognized in Montana but not in Wisconsin. Some states have also abolished the statutes allowing for common law marriage, such as Alabama.

In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and treated the same as married spouses in certain contexts such as taxes and financial claims.

Common law and the UK's Voyeurism (Offences) Act

Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. Common law is more malleable than statutory law. It is based on the principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.

The UK's Voyeurism (Offences) Act 2019 is an example of how common law can influence new legislation. Before 2019, there was no specific law against upskirting in England and Wales. Upskirting cases were prosecuted occasionally under the common law offence of "outraging public decency", which requires the presence of at least two other people and for the act to be done in a public place. In 2017, a campaign was started to reopen a closed case of upskirting at a music festival, which sparked a public debate over the legality of upskirting in England and Wales. This led to the introduction of the Voyeurism (Offences) Act, which amends the Sexual Offences Act 2003 to make upskirting a specific offence of voyeurism. The Act makes it a crime to create images of, or operate equipment to view, genitals, buttocks, or underwear beneath clothing without the person's consent, with the intention of sexual gratification or causing humiliation, alarm, or distress. The maximum sentence for this offence is two years' imprisonment, and in more serious sexual cases, those convicted are added to the Violent and Sex Offender Register.

The Voyeurism (Offences) Act 2019 demonstrates how common law can influence and shape new legislation to address societal changes and unforeseen situations not covered by existing statutes. It also highlights the flexibility of common law, as it allows higher courts to overrule prior decisions and adapt to evolving societal norms and values. This case also illustrates the complexity that can arise from the interaction of common law with constitutional, statutory, and regulatory law.

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