Keith Mack
Common law, also known as case law, is a body of unwritten laws based on legal precedents. 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. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law judges interpret past rulings, whereas civil law judges apply statutes strictly. It is flexible and adaptable to the unforeseen, allowing for case-by-case evolution. As a result, common law can respond to changes in society and is influenced by societal norms. This means that past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
| Characteristics | Values |
|---|---|
| Nature | A body of unwritten laws based on legal precedents |
| Basis | Judicial precedent, not statutes |
| Application | Judges interpret past rulings |
| Flexibility | Allows for case-by-case evolution |
| Adaptability | Applicable to unforeseen situations |
| Consistency | Ensured by stare decisis, requiring courts to follow established precedents |
| Evolution | Evolves over time as new cases are adjudicated |
| Marginalization | May lead to unfair marginalization or disempowerment of certain groups |
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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 stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law relies on the principle that courts should follow precedents established by previous decisions. This means that when a similar case has been resolved, courts will typically align their reasoning with the precedent set in that previous decision.
However, common law is also flexible and adaptable. It is flexible because it can respond to changes in society. Common law does not require lawmakers to pass changes in statutes and codes, which can take a long time or never happen. Instead, higher courts can overrule prior decisions as "bad law" without needing to wait for lawmakers to act. This flexibility allows common law to adapt to unforeseen situations that were not contemplated at the time by the legislature. For example, as technology continues to evolve and grow, common law's ability to leave the legal code open for interpretation will become increasingly important.
Common law is adaptable because it draws from institutionalized opinions and interpretations from judicial authorities and public juries. It promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw, not on subjective, personal viewpoints. It also promotes efficiency because court proceedings can be shorter, saving time and money.
The flexibility and adaptability of common law can be seen in how it has evolved over time. For example, in the late 19th century, there was critical discussion in the United States about the reliance on old maxims and rigid adherence to precedent. Oliver Wendell Holmes Jr. commented that it was "revolting" to have no better reason for a rule of law than that it was laid down in the time of Henry IV. Similarly, in the 19th and early 20th centuries, feminists fighting for women's rights often faced difficulties due to outdated or biased precedents in common law.
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Common law is deeply rooted in stare decisis
Common law, also known as case law, is a body of unwritten laws based on legal precedents. It is primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. Stare decisis is a doctrine that promotes the adherence of courts to precedent in making their decisions. It is based on the idea that previous rulings on similar issues should be followed to maintain stability and consistency in the legal system.
The concept of stare decisis is essential in common law because it provides a framework for deciding new cases. When a court faces a legal argument, it will look to previous rulings on the same or similar issues and make its decision in alignment with those precedents. This ensures that the law is applied consistently and predictably, reducing the potential for bias and arbitrary decision-making. Stare decisis also lessens the need for subsequent litigation, saving time and resources for the judiciary.
In common law systems, courts can address situations not originally predicted by lawmakers, and they have the flexibility to respond to changes in society. This is because common law is based on judicial precedent rather than statutes. When a similar case has been resolved, courts will typically follow the precedent set in that decision. However, judges are not strictly bound by precedent and can deviate from or overturn previous rulings if they are outdated, unjust, or if the current case is substantially different.
The doctrine of stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own prior decisions, while vertical stare decisis involves lower courts following the decisions of higher courts within the same jurisdiction. While stare decisis is a fundamental principle in common law, it is not an "inexorable command". There may be times when prior decisions are overruled if they are deemed "unworkable or badly reasoned", especially in constitutional cases.
The English common law of the 18th century served as the foundation for the idea of stare decisis in American jurisprudence. The English jurist William Blackstone described the common law precedent doctrine as establishing a strong presumption that judges would follow prior precedents to promote legal stability. However, even in the 1700s, there was recognition that blind adherence to old precedents could be problematic, as noted by Justice Holmes in the 19th century. Today, with the advancement of legal technology, it is easier to find relevant caselaw and determine if a case is still considered "good law".
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Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents. It is primarily developed through judicial decisions rather than statutes. Common law originated in the practices of the courts of English kings following the Norman Conquest. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is flexible, adaptable, and efficient, as it can respond to changes in society and address situations not predicted by lawmakers. It is also less prescriptive, allowing for extensive freedom of contract, and generally permits everything that is not expressly prohibited by law.
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 disseminated in the 19th century, notably with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. It is characterised by its reliance on legal codes as the primary source of law, rather than judicial precedent. Civil law is more prescriptive, with a clear definition of cases that can be brought to court, procedures for handling claims, and punishments for offences. It aims to create order and reduce bias by standardising codes, but it may struggle to keep up with societal changes as it requires lawmakers to pass changes in statutes and codes.
In a common law system, judicial decisions are binding, and higher courts can overrule prior decisions as "bad law". Common law promotes stability and consistency as outcomes are based on previous caselaw rather than subjective viewpoints. It is also efficient, as judges only need to follow precedent, and adaptable, as it can address unforeseen situations. However, past decisions in common law can lead to the marginalisation or disempowerment of certain groups, and it may be difficult for marginalised parties to pursue favourable rulings until societal changes prompt a reinterpretation of the law.
In a civil law system, a judge's decision interpreting the text of the code is generally not binding in later cases involving different parties. Civil law provides a clear framework for legal proceedings and reduces ambiguity. It is regularly updated to standardise codes and reduce bias in the application of laws. However, the process of updating civil law codes can be time-consuming, and the reliance on written codes may make it less adaptable to changes in society.
Common law and civil law systems have their own advantages and disadvantages, and many countries have adopted features from both systems into their legal frameworks. Common law is typically found in countries that were former British colonies or protectorates, such as the United States, while civil law is practiced in a larger number of countries worldwide.
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Common law is based on past rulings
Common law, also known as case law, is a body of unwritten laws based on past rulings, also known as legal precedents. 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. While common law may incorporate certain statutes, it is largely based on precedent—judicial rulings made in previous similar cases. The judge presiding over a case determines which precedents apply to that particular case.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is flexible and can respond to changes in society. It is adaptable to unforeseen situations not originally predicted by lawmakers. In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
In the late 19th century, there was critical discussion in the United States regarding the reliance on old maxims and rigid adherence to precedent. Oliver Wendell Holmes Jr. commented that it was "revolting" to have no better reason for a rule of law than that it was laid down in the time of Henry IV. He noted that the study of maxims might be sufficient for "the man of the present", but "the man of the future is the man of statistics and the master of economics".
Past decisions, whether they are outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This system has made it difficult for marginalized parties to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in England, common law as late as the 1970s held that, when couples divorced, fathers—rather than mothers—were entitled to custody of the children, a bias that kept women trapped in marriages.
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Common law is judge-made law
Common law, also known as judge-made law, is a body of law based on legal precedents. 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. In other words, it is created through court decisions and evolves incrementally through case decisions. Judges shape the law by interpreting statutes and filling gaps where legislation is silent or ambiguous.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. The modern definition of common law as "case law" was eventually adopted by many notable writers, including A. V. Dicey, William Markby, Oliver Wendell Holmes, John Austin, Roscoe Pound, and Ezra Ripley Thayer.
Judge-made law is inherently evolutionary. It develops gradually through the accumulation of decisions in individual cases, allowing the legal system to respond to new problems without waiting for legislative action. This is particularly valuable in areas like tort law, contract disputes, and emerging technologies. For example, in the case of Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence, demonstrating the flexibility of common law to adapt to changes in society.
Common law is deeply rooted in precedent, where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This was demonstrated in the Evans decision, which changed Colorado common law by outlawing the freedom of rulers from responsibility and punishment for their wrongs.
In summary, common law, or judge-made law, is a body of law that is primarily developed through judicial decisions and based on legal precedents. It is deeply rooted in stare decisis and evolves incrementally through case decisions, allowing the legal system to adapt to new problems and changes in society.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents. It is deeply rooted in stare decisis, which means "to stand by things decided".
Common law judges interpret past rulings, whereas civil law judges apply statutes strictly. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Yes, common law evolves over time. As courts interpret new cases and societal norms shift, legal precedents evolve, making common law adaptable to modern challenges.
Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money.
