Gavin Howe
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. Common law is primarily developed through judicial decisions rather than statutes, and judges create common law when they decide cases. These decisions are based on past rulings in similar cases, known as precedents. Common law is flexible, as it can respond to changes in society, and higher courts can overrule prior decisions as bad law. It is used in many countries around the world, including the United States, Canada, India, Australia, and the United Kingdom.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law derived from judicial decisions, rather than statutes or constitutions. |
| Basis | Common law is based on precedent, i.e., judicial rulings made in previous similar cases. |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Judicial Overreach | Critics argue that common law allows judges to overreach and make law through judicial rulings. |
| Judicial Reluctance | Critics also argue that judges are sometimes reluctant to employ case law to redress challenges to established law. |
| Marginalization | Common law has historically led to the marginalization or disempowerment of certain groups due to outdated or biased past decisions. |
| Influence | Common law influences the decision-making process in unusual cases where existing statutes or written rules of law do not provide a clear outcome. |
| Binding Precedent | Decisions of higher courts are binding precedent for lower courts within their geographic region. |
| Legislative Intent | Modern jurisprudence considers legislative intent when applying rules of statutory construction to reach decisions. |
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What You'll Learn
Common law vs civil law
There are two primary 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 law derived from judicial decisions, rather than statutes or constitutions. It is largely based on precedent, or stare decisis, which means "to stand by things decided", and is deeply rooted in judicial decisions. Common law originated in medieval England and was widely believed to derive its authority from ancient Anglo-Saxon customs. It is practised today in countries that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
In contrast, civil law is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the world's most common legal system, practised in about 150 countries. Unlike common law, civil law relies on legal codes as the primary source of law, rather than judicial precedent. While common law systems place great weight on precedent, civil law judges tend to give less weight to previous judicial decisions.
One key difference between the two systems is their approach to contracts. Common law systems have extensive freedom of contract, with few provisions implied into the contract by law. It is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems imply various provisions into a contract, and less importance is placed on setting out all the terms in the contract. Inadequacies or ambiguities in a contract can be remedied or resolved by operation of law, resulting in shorter contracts compared to those in common law countries.
Another difference is in the role of judicial decisions and precedent as a source of law, which is one of the defining features of common law systems. Common law is deeply rooted in stare decisis, where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with that precedent. In contrast, civil law systems rely on legal codes as the primary source of law, rather than judicial precedent. For example, the Napoleonic Code in France expressly forbade French judges from pronouncing general principles of law.
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Common law jurisdictions
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 institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, a Latin term that roughly means "to stand by things decided". This means that judges need to follow past decisions and rulings, also known as case law, when dealing with similar cases later. For example, if a court makes a particular decision based on a specific set of facts, then the court is required to follow that decision if they ever make a ruling on a similar issue.
Legal systems that rely on common law as precedent are known as "common law jurisdictions". Common law jurisdictions can be found in the United States, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom. The U.S. common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. 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 they are only persuasive authority on sister circuits.
Common law is flexible as it can respond to changes in society. Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes. In common law jurisdictions, higher courts can and sometimes do overrule prior decisions as "bad law" without waiting for lawmakers to do so. Common law still has practical applications in some areas of law, such as contract law and the law of torts.
In the past, common law was widely believed to derive its authority from ancient Anglo-Saxon customs. However, critics argue that common law has led to the unfair marginalization or disempowerment of certain groups, such as 19th and early 20th-century feminists who fought for women's rights.
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Common law in contract law
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 stare decisis, which means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. While civil law is a comprehensive, codified set of legal statutes created by legislators, common law is more open to interpretation.
In the United States, contract law is governed by a combination of common law and statutory law, including the Uniform Commercial Code (UCC). Common law governs contracts for services, real estate, insurance, intangible assets, and employment, while the UCC governs contracts for the sale of goods and tangible objects. Common-law contracts can be bilateral or unilateral, and they must contain offer, acceptance, and consideration. Offer and acceptance together form mutual assent. To be enforceable, the contract must be for a legal purpose, and the parties must have the capacity to enter into the contract. For example, minors may enter into contracts, but they can also choose to cancel them. Additionally, in common-law contracts, the acceptance must be a "mirror image" of the offer to be valid.
Furthermore, any change to an offer under common law is considered a rejection and counteroffer, which creates a new offer. This differs from the UCC, where a change to an offer may still result in a binding contract depending on the circumstances. Common law also requires that a valid contract includes a description of the quantity, price, performance time, nature of work, and identity of an offer. While the UCC has more relaxed requirements, it contains rules for everyone and specific rules for merchants.
Overall, the common law in contract law plays a crucial role in shaping the legal landscape and facilitating agreements between parties in various contexts, from everyday transactions to complex business deals.
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Common law in the US
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 the principle of stare decisis, which means "to stand by things decided". In other words, common law is largely based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding on a new case.
In the US, common law evolved from a British tradition that spread to North America during the 17th and 18th centuries. While the US common-law system is influenced by English common law, it has since developed its own unique characteristics. One notable difference is that US common law exists alongside numerous codified statutes that courts must consider. This means that while common law in the US is derived from judicial decisions, it also incorporates certain statutes.
At the state level, legislatures often codify common law rules from the courts of their state. This can be done to give the rule more permanence, to modify it, or to replace it entirely with legislation. For example, in 2018, the California Supreme Court issued a decision that articulated a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section of the Labor Code, which codified and expanded on the court's holding.
While common law is primarily found at the state level in the US, there is also a limited body of federal common law. Federal common law refers to rules created and applied by federal courts in the absence of any controlling federal statute. For example, in the 2020 Supreme Court opinion Rodriguez v. FDIC, the Court quoted an earlier decision to explain that federal "common lawmaking must be 'necessary to protect uniquely federal interests'".
In summary, common law in the US is a complex and dynamic legal system that has evolved from English common law and been shaped by American courts, legislatures, and unique federal interests. While it is primarily based on judicial decisions and precedent, it also incorporates statutes and legislative changes, making it distinct from pure common law systems.
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Common law and marginalisation
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 stare decisis, which means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
While common law aims to establish consistent outcomes by applying the same standards of interpretation, it has historically led to the unfair marginalization 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 creates and recreates margins as a byproduct of interpreting and implementing the law. For example, in the English legal system, a Supreme Court case concerning the recoverability of money won by a casino gambler by cheating was used to overturn a long-standing criminal law precedent on the legal meaning of dishonesty.
The concept of marginalized legal categories describes how the law disadvantages individuals or groups by transforming inherently ordered social classifications into consequential legal categories. For instance, intestate laws in the United States disproportionately affect individuals of colour and those with less wealth, as they may lack access to intestacy-avoidance mechanisms. Similarly, laws of intestacy may violate individuals' rights to equal protection under the law by systematically failing to meet the needs of certain sociodemographic groups, such as multigenerational households common among Black, Hispanic, and immigrant families.
In the context of marginalized communities and access to justice, scholars examine the role of courts in administering laws pertaining to the entitlements of these communities. This includes exploring challenges such as the movement of landless rural workers in Brazil, access to justice for Indigenous communities in Latin America, and the struggle for land by peasants in China.
Overall, while common law provides a framework for judicial decisions, it is not without its shortcomings. The marginalization of certain groups through legal interpretation and the enforcement of laws that disadvantage specific communities are critical issues that require ongoing scrutiny and reform.
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Frequently asked questions
Common law is a body of law based on judicial decisions rather than statutes or codes. It is deeply rooted in stare decisis, which means "to stand by things decided".
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is more flexible and can respond to changes in society without requiring lawmakers to pass changes in statutes and codes.
Common law can be found in various areas of law, including contract law, the law of torts, and negligence law. For example, determining liability in a car accident or resolving a dispute between a bride and a wedding photographer would typically be based on common law principles.
Judges use common law by searching for past decisions from similar cases, which are known as precedents. These precedents guide their interpretation and application of the law to the current case. Precedents from higher courts are typically binding on lower courts, while decisions from appellate courts may be persuasive but not binding.
