Judicial Lawmaking: Common Law's Evolution

Common law is a body of unwritten laws based on legal precedents established by the courts. Judges presiding over common law cases determine which precedents apply to a particular case, and while they are generally expected to follow earlier decisions, they can also modify or deviate from them if they are outdated or if the current case is substantially different. This system of creating precedents is sometimes called stare decisis, or judge-made law, as the law is created by the judge, not by a legislature. This evolution of common law is in the hands of judges, and judges have made law for hundreds of years.

Common law is a body of unwritten laws based on legal precedents

The common law system allows for some freedom in the interpretation of the law, which is especially important as technology continues to evolve and play a greater role in our lives. Judges are tasked with interpreting and applying the law to new situations that may not have been contemplated by the legislature when the law was first created. For example, in the US, common law has been used to address issues such as upskirting, which was not specifically addressed in the criminal code. The common law system also allows for the development of rules and principles that can be applied to future cases, which can sometimes supplant legislative enactments.

It is important to note that while judges play a significant role in shaping common law, they are not the only ones involved in the process. In common law countries, the courts are responsible for interpreting and applying the law, and their decisions can have a binding effect on future cases. Additionally, in some countries, such as the US, the decisions of the highest court can generally only be overturned by that same court or through legislation. This highlights the interplay between the judiciary and the legislative branch in shaping the law.

While common law provides flexibility and adaptability, it has also been criticised for its reliance on old precedents and maxims, which may no longer be relevant or appropriate in modern times. This rigidity in adhering to precedent has been a subject of critical discussion since the late 19th century. Nonetheless, common law continues to evolve, and judges have played a crucial role in this evolution, "making law" for hundreds of years.

Judges interpret and apply the law, but don't create it

Judges interpret and apply the law, but they do not create it. The common law system, followed in countries that were formerly British colonies or protectorates, is based on legal precedents established by the courts. Judges are expected to follow these precedents, also known as stare decisis, to ensure uniformity and predictability in judicial outcomes. While judges may influence the criteria that a jury uses to interpret a case, they do not create the law.

In common law, judges are bound to follow the decisions of earlier judges in cases with similar facts. This practice, known as precedent, promotes stability and consistency in the legal system. Judges interpret and apply the law by presenting relevant precedents to the jury, who then use these precedents to guide their interpretation of the case at hand. This process allows for some flexibility in interpretation, adapting the law to situations not previously contemplated by legislators.

However, it is important to note that judges do have a significant role in shaping the law. In cases where there is no clear statutory answer, judges must render decisions based on their own conceptions of justice. These decisions then become precedents for future cases, influencing the interpretation and application of the law. Additionally, judges can modify or deviate from precedents if they are outdated or if the current case significantly differs from the precedent, allowing for the evolution of the common law over time.

While judges do not create the law in the traditional sense, their interpretations and applications of it through the use of precedents can have a substantial impact on the legal system. This process of judicial decision-making is more pervasive and acknowledged in common-law countries than in civil-law countries, where there is a comprehensive, codified set of legal statutes created by legislators. Ultimately, the role of judges in the common law system is to interpret and apply the law, ensuring fairness and consistency in judicial outcomes.

Judges have been making laws for hundreds of years

In common-law countries, judges are tasked with resolving disputes and rendering decisions when there is no clear statutory answer. They do so based on their own conceptions of justice, filling in the gaps left by legislative bodies. These judicial decisions then become precedents themselves, guiding future cases and sometimes even supplanting original legislative enactments. For example, in the United States, common law developed by judges was preferred by Federalists as it protected the natural rights to "life, liberty, and the pursuit of happiness".

The influence of judges in law-making is particularly notable in lower courts. While generally bound by the decisions of higher courts, lower courts can modify, deviate from, or even overturn precedents if they are outdated or substantially different from the current case. This flexibility allows the law to adapt to changing societal norms and technological advancements. However, this power of judges to interpret and apply the law is not without its challenges, as it can lead to the marginalization or disempowerment of certain groups if not carefully balanced with fairness and justice.

The common-law system's reliance on judicial law-making stands in contrast to civil law systems, which are characterized by a comprehensive, codified set of legal statutes created by legislators. In civil law, judicial authorities primarily interpret and apply these statutes to specific cases, with less room for judge-made law. Nonetheless, even in civil law systems, judges play a crucial role in interpreting vague legislative provisions and filling in legislative gaps, contributing to the evolution of the law over time.

Common law is derived from medieval England

Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has evolved over time, with its roots in medieval England. The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a significant role in government.

In the 12th century, there was a shift across northwestern Europe from local, informal power arrangements to formal government organised along bureaucratic lines. This shift was particularly evident in England during the reign of Henry II (1154-1189). Henry II established permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, in Westminster, London. He also sent around 20-30 judges from his Curia Regis to hear disputes throughout the country, interpret customs, and resolve them based on these interpretations. These decisions were recorded and filed, creating a body of precedents that future judges were required to follow in similar cases. This principle, known as stare decisis or precedent, became a defining feature of common law.

The Normans, who spoke French, had developed their own customary law in Normandy. They had no professional lawyers or judges, so literate clergymen acted as administrators. Some of these clergymen were familiar with Roman law and the canon law of the Christian church, which influenced the development of common law in England. Canon law was applied in the English church courts, while the revived Roman law had less influence due to the sophistication of the Anglo-Norman system.

The emergence of common law in England directly influenced the legal systems in Ireland and, to a lesser extent, Scotland. Today, the US and UK operate under a dual system of both common and civil law. Common law continues to evolve and adapt to new situations, making it relevant in the modern era.

Common law is used in the US and UK, alongside civil law

Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law stands in contrast to 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.

In the US, the courts operate under common law, which originates from medieval England. The US legal system is a dual system that operates under both common and civil law. Common law in the US is seen in the concept of common-law marriage, which grants similar rights to couples who are not officially married as those with a marriage license. Common law allows for the law to be adapted to situations that were not contemplated at the time by the legislature.

In the UK, the common law of England was largely created after the Norman Conquest of 1066. The legal systems in the UK experienced integration with European Union (EU) law in 1973, which influenced the domestic law of its constituent states. The UK has since exited the EU, but the European Convention on Human Rights (1950) continues to influence its regime of human rights. The UK, like the US, operates under a dual system of both common and civil law.

Judges play a crucial role in the evolution of common law, as they have "made law" for hundreds of years. They present the precedents that apply to a case and significantly influence the criteria that a jury uses to interpret it. The decisions made by judges are based on the precedents set by previous judges and are recorded and filed, influencing future rulings.

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