Anaya Nolan
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England and is still very much in effect in the US and other countries today. Common law is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. Statutes are generally understood to 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. At the state level, legislatures often subsequently codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it somehow, or to replace the outcome entirely with legislation.
| Characteristics | Values |
|---|---|
| Common law's ability to be interpreted | Important as technology continues to grow |
| Common law's origin | Medieval England |
| Common law's current use | US, UK, Australia, Canada, Hong Kong, India, New Zealand |
| Common law's basis | Judicial decisions, not statutes |
| Common law's application | Unusual cases where existing statutes or written rules do not apply |
| Common law's influence | Decisions made in previous similar cases |
| Common law's flexibility | Less prescriptive than civil law |
| Common law's limitations | Statute law supersedes common law |
| Common law's impact | Influences decisions in lower courts |
| Common law's challenges | May lead to unfair marginalization or disempowerment of certain groups |
| Common law's evolution | May be changed by societal changes or civil legislation |
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What You'll Learn
Common law's evolution
Common law, also known as case 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". Common law originated in England in the Middle Ages, in the King's Court (Curia Regis). It was a unified system of law "common" to the country, incorporating and elevating local customs to the national level.
Over time, as legislation became more comprehensive, courts began to operate within narrower limits of statutory interpretation. This evolution of common law was eloquently expressed by Lord Mansfield in the case of Omychund v. Barker, who contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament".
Common law has been criticised for leading to the unfair marginalisation 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 cases of divorce, a bias that kept women trapped in marriages.
Common law still has practical applications in some areas of law, such as contract law and the law of torts. It is also influential in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. Common law systems are found in the United States and in most member states of the Commonwealth, and approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law.
While common law is based on precedent, it is not static and can evolve over time. Judges play a crucial role in this evolution by interpreting and applying the law to specific cases, and their decisions can influence the criteria that juries use to interpret cases. In some cases, judges are empowered to resolve issues and establish new precedents.
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Common law vs civil law
Common law and civil law are two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. Common law originated in medieval England and is still in effect in the US and elsewhere today. Common law systems are less prescriptive than civil law systems.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practised in about 150 countries. It is characterised by its reliance on legal codes that function as the primary source of law, rather than judicial precedent. Civil law systems are generally more prescriptive than common law systems.
In a common law system, there is no official legal code that can be directly applied to a case. Instead, judges rely on detailed records of similar situations and statutes to determine which precedents apply to a particular case. The decisions of higher courts are binding on lower courts, although lower courts can deviate from precedents if they are outdated or if the current case is substantially different. Common law allows for the legal code to be open to interpretation, which can be particularly important as technology evolves and its presence in our lives continues to grow.
In a civil law system, the law takes the form of written codes that are applied to specific cases. Civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack the authority to act if there is no statute. Civil law systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. In many civil law countries, a separate administrative law governs PPP arrangements and contracts are enforced by administrative courts unless the contract specifies that the parties have agreed to arbitration.
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Common law in unusual cases
Common law, also known as case 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". Common law originated in England and is still very much in effect in the US and other countries today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In unusual cases where the outcome cannot be determined based on existing statutes or written rules of law, common law influences the decision-making process. For example, in the early 1970s, an 18-year-old woman in Colchester, UK, went to bed intoxicated after spending the evening drinking with her boyfriend. She later realized that the man she had invited into her bed and had sex with was not her boyfriend, although it was someone she knew. The trial examined whether the man had been "invited" by the woman or if he had entered as a trespasser. The Court of Appeal found that the man had not committed a crime as he had been invited into the woman's home. This case, known as R v Collins, was key in developing English criminal law on burglary and trespass.
Another unusual case that influenced common law is the "cannibal" case of R v Dudley and Stephens. In 1884, a crew of four seamen were travelling from the UK to Australia when their ship sank due to bad weather. The crew was left with only a few cans of turnips to eat and quickly ran out of food and water. After more than ten days, the crew discussed drawing lots to choose one person to kill and devour to survive. Crew members Edwin Stephens and Tom Dudley ultimately killed the youngest member, Richard Parker. This case established that "necessity" cannot be used as a defence when charged with murder.
Common law also has practical applications in areas such as contract law and the law of torts. For example, the famous case of Donoghue v Stevenson in 1928, also known as the "Paisley snail" case, founded the general duty of care that manufacturers have towards consumers. Mrs Donoghue claimed that she became ill and suffered severe gastroenteritis after drinking ginger beer containing a snail. She took legal action against the manufacturer and won, with Lord Atkin stating, "you must not injure your neighbour".
In summary, common law continues to influence and be shaped by unusual cases, contributing to the development of legal precedents and the evolution of the law.
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Common law and marginalisation
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is derived from its original appearance in medieval England, but it is still very much in effect in the US and elsewhere today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
The traditions of common law have historically led to the unfair marginalisation or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic makes it challenging for marginalised parties to obtain favourable rulings until popular thought or civil legislation changes the interpretation of common law. For instance, common law in England, as late as the 1970s, dictated that fathers were entitled to child custody upon divorce, effectively trapping women in marriages. Feminists in the 19th and early 20th centuries often faced such difficulties in their fight for women's rights.
The concept of marginalisation in law refers to how the law disadvantages individuals or groups by transforming inherently ordered social classifications into consequential legal categories. For example, intestate laws in the US disproportionately affect individuals of colour and those with less wealth, as they may lack access to intestacy-avoidance mechanisms. Similarly, the laws of intestacy may violate individuals' rights to equal protection under the law by failing to meet the needs of certain sociodemographic groups.
In the context of infrastructure, certain legal concepts in civil law jurisdictions, such as "concessions" and "affermage," may not be understood or applied in a common law country, potentially leading to marginalisation or disadvantages for certain groups.
Furthermore, the process of making, implementing, and interpreting the law inherently creates margins by determining what is and is not included in the legal text. For instance, in the common law tradition, appeal judgments create a margin by relegating certain reasons to the position of obiter dicta, which are not central to the legal decision but can still be considered by courts in the future.
Overall, the dynamic between common law and marginalisation is complex and multifaceted, with historical precedents, social classifications, and legal interpretations all playing a role in shaping the outcomes for marginalised communities.
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Common law in infrastructure projects
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England and is still very much in effect in the US and other countries today. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case.
In the context of infrastructure projects, common law plays a crucial role in shaping the legal framework and addressing the complexities that arise. Infrastructure projects are almost exclusively managed by government agencies and have a significant impact on the construction industry. Construction companies working on these projects must navigate intricate contracts and legal issues unique to working with the government.
One of the key considerations in infrastructure projects is managing changes. Under common law, construction contracts need to be flexible to accommodate both planned and unexpected changes. Either the employer or the contractor can initiate a change, but the process must adhere to the mechanisms outlined in the contract. This includes considerations such as early warnings, risk registers, and corresponding notices.
Additionally, construction companies need to be mindful of potential delays in infrastructure projects. Delays can occur due to various factors, and companies can face fines or other problems if they fail to negotiate provisions for these delays. It is essential to work with legal experts to negotiate contracts that offer protection against delays beyond the company's control.
Furthermore, issues of non-payment can arise in infrastructure projects. While rare, non-payment can occur due to last-minute changes in work priorities. Construction companies must proactively work with the government to handle these changes and ensure prompt payment. Standard remedies for non-payment, such as liens, may not be effective against the government.
In conclusion, common law plays a significant role in infrastructure projects by providing a framework for managing changes, addressing delays, and navigating unique legal issues associated with government contracts. Construction companies must thoroughly understand the intricacies of common law and seek legal expertise to protect themselves from potential pitfalls and ensure a smooth project execution.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case.
Yes, statute law always overrides common law. Statutes may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law.
Common law can be changed by judges in a court. However, it can also be changed by legislatures, which may subsequently codify, modify, or replace common law rules.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law is less prescriptive than civil law, and relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand.
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