Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. In common law systems, courts can address situations not originally predicted by lawmakers, making it flexible and adaptable. The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals. These circuit courts play a crucial role in the common law system by interpreting and applying the law to specific facts, establishing precedents, and shaping the legal landscape within their respective circuits. So, do circuit courts make common law? This paragraph raises the question and sets the context for further exploration.
| Characteristics | Values |
|---|---|
| Basis | Precedent, not statutes |
| Nature | Unwritten laws |
| Flexibility | Can respond to changes in society |
| Adaptability | Applicable to situations not contemplated by the legislature |
| Overruling | Higher courts can overrule prior decisions as "bad law" |
| Interpretation | Allows freedom for interpretation |
| Binding | Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself |
| Jurisdiction | Decisions are only persuasive authority on sister circuits |
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What You'll Learn
Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided" in Latin. This means that common law is largely based on precedent, following previous rulings and decisions when dealing with similar cases.
However, common law is also flexible and adaptable. It allows for changes in society and new situations that lawmakers may not have predicted or contemplated. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to pass changes in statutes and codes, which can be a lengthy process. For example, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court established a three-part test to determine the employment status of California workers, which the California Legislature later codified and expanded upon.
The flexibility of common law is particularly valuable in addressing unusual cases where existing statutes or written rules of law do not provide a clear outcome. In these situations, judges are empowered to interpret the law and establish new precedent. This adaptability allows the law to be applied to new situations and ensures that the same standards of interpretation are used consistently.
The United States federal courts, including the Court of Appeals for the Federal Circuit, contribute to the development of common law by interpreting fundamental laws, such as the US Constitution, legislative statutes, and agency regulations. The US Supreme Court, as the highest court in the country, has the authority to overrule and unify criminal law decisions of lower courts and interpret the Constitution and federal statutes.
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Common law is based on precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided" in Latin. This principle guides judges to follow precedents or rulings from previous similar cases when deciding on new cases. The presiding judge determines which precedents to apply in each new case.
Common law is flexible and adaptable, allowing it to address situations not originally contemplated or predicted by lawmakers. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. For example, in the United States, the federal courts are divided into twelve regional circuits, each with its own circuit court of appeals. The decisions of one circuit court are binding on the district courts within that circuit and on the circuit court itself but are only persuasive authority on sister circuits. District court decisions, on the other hand, are not binding precedents and hold only persuasive value.
In some instances, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to make changes to the statutes. This flexibility allows common law to keep up with changes in society and ensures that the law can be adapted to situations not previously considered.
Common law may also incorporate certain statutes, but it primarily develops through judicial decisions. In a ""case of first impression," where there is no clear precedent or legislative guidance, judges have the power to establish new precedents by resolving the issue at hand. This process contributes to the evolution of common law over time.
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Federal common law
The Supreme Court has recognised that federal common law exists in two instances: firstly, where a federal rule of decision is necessary to protect uniquely federal interests, and secondly, where Congress has given the courts the power to develop substantive law. In these instances, federal common law is valid only to the extent that Congress has not repealed it.
Congress often lays down broad mandates with vague standards, which are then interpreted by the courts. These interpretations give rise to complex understandings of the original intent of Congress, informed by the courts' understanding of what is just and reasonable.
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Common law and civil law
There are two main types of legal systems in the world: common law and civil law. Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by courts. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law originated in medieval England and is practised today in countries that were formerly British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is the most common legal system in the world today, practised in about 150 countries, including much of Central and South America, Central and Eastern Europe, and East Asia.
One key difference between common law and civil law is their approach to contracts. In a common law system, there are few provisions implied into a contract, so it is important to set out all the terms governing the relationship between the parties in the contract itself. This often results in longer contracts compared to those in a civil law country. In contrast, civil law systems imply many provisions into a contract by law, and parties cannot contract out of certain provisions. Civil law systems also tend to be more prescriptive, clearly defining the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
Another difference lies in their treatment of precedent. Common law systems place great weight on precedent, with courts adhering to the doctrine of stare decisis, or "to stand by things decided" in Latin. In contrast, civil law judges tend to give less weight to judicial precedent, relying primarily on legal codes as the source of law. However, it is important to note that common law systems may also incorporate scattered statutes, while civil law codes can introduce major reforms or start anew, resembling the Restatements of the Law and the Model Penal Code in the United States.
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Common law in the US
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided" in Latin. In other words, common law is based on the idea that courts should follow precedents or previous rulings when dealing with similar cases in the future.
In the United States, the federal courts are divided into twelve regional circuits, each with its own circuit court of appeals. The decisions of one circuit court are binding on the district courts within that circuit and on the circuit court itself but are only persuasive authority on sister circuits. District court decisions, on the other hand, are not binding precedent and are only persuasive.
The US operates under a dual system of both common and civil law. While common law is flexible and based on judicial precedent, civil law 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.
Common law is particularly useful in situations where existing statutes or written rules of law do not provide a clear outcome. It allows the courts to address situations that were not originally contemplated or predicted by lawmakers. For example, in the context of a ""case of first impression" with no precedent or clear legislative guidance, judges can establish new precedents by resolving the issue at hand.
At the state level, legislatures may codify common law rules from their state courts to give them permanence, modify them, or replace them with new legislation. This process illustrates the dynamic nature of common law and how it can evolve over time to meet the changing needs and circumstances of society.
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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 largely based on precedent, meaning the judicial decisions that have already been made in similar cases.
The United States federal courts are divided into twelve regional circuits, each with a circuit court of appeals. Decisions of one circuit court are binding on the district courts within the circuit and on the circuit court itself, but are only persuasive authority on sister circuits.
District courts resolve disputes by determining the facts and applying the law to those facts. District court decisions are not binding precedent at all, only persuasive.
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