Anaya Nolan
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society and adapt to new situations. Common law is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. While common law may incorporate certain statutes, it is largely based on precedent and allows some freedom for interpretation. The presiding judge determines which precedents to apply in deciding each new case. Over time, as societal changes occur, judicial bodies may overturn outdated precedents and establish new ones, leading to the evolution of common law.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions and rulings made in previous similar cases |
| Adaptability | Can be adapted to situations not contemplated at the time by the legislature |
| Flexibility | Can respond to changes in society |
| Dual system | Common law and civil law are both followed in the US and UK |
| Influence | Influences the legal systems of several countries including the US, Canada, India, and Australia |
| Evolution | Evolved from a British tradition that spread to North America during the 17th and 18th centuries |
| Codification | Generally uncodified, with no comprehensive compilation of legal rules and statutes |
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What You'll Learn
Common law's flexibility
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". This means that courts follow precedents established by previous decisions. However, common law also allows for some freedom for interpretation, which is a key aspect of its flexibility.
Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. While it may incorporate certain statutes, it is primarily based on precedent, or judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in each new case. This flexibility allows the law to be adapted to situations that were not contemplated at the time by the legislature. For example, conspiracy as a legal concept was invented by courts during the 19th century to deal with contemporary problems.
The flexibility of common law can encourage good judgement. In the case of R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge considered the economic consequences of a judgement that put legal principle before pragmatism, and ultimately decided to balance the legal principle with practical considerations. This flexibility allowed justice to be served while also preserving settled rules.
However, the flexibility of common law can also lead to outdated or biased decisions that 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. This was only changed in the 1970s due to societal shifts in women's rights.
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Common law vs 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 the courts. It is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes.
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 and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practiced in about 150 countries. It is characterized by its reliance on legal codes that function as the primary source of law. Civil law is generally more prescriptive than common law, with more provisions implied into contracts. Civil law systems clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
Common law and civil law systems have different approaches to precedent. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. For example, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. Common law systems allow for more freedom of interpretation, which can be beneficial as technology evolves and new situations arise that were not contemplated by the legislature. However, this can also lead to outdated or biased decisions that continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
In terms of contracts, common law systems have extensive freedom of contract, with few provisions implied by law, while civil law systems have more provisions implied into contracts. In a common law system, it is important to set out all the terms governing the relationship between the parties in the contract itself, while civil law systems place less importance on this as inadequacies or ambiguities can be resolved by operation of law.
Common law is practiced in countries that were former British colonies or protectorates, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. The U.S. common-law system evolved from a British tradition that spread during the 17th and 18th centuries. Louisiana is the only U.S. state whose private civil law is based on French and Spanish codes rather than English common law. Today, both the US and UK operate under a dual system of both common and civil law.
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Common law's origins
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 largely based on stare decisis, which means "to stand by things decided". In other words, common law is deeply rooted in precedent, where courts follow precedents established by previous decisions.
The origins of common law can be traced back to the medieval period in England, specifically to the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. Prior to this, legal matters in England were handled by local folk courts, urban boroughs, merchant fairs, and large landholders' manorial and seigniorial courts. The Norman Conquest established a unified legal system, gradually replacing the diverse regional and local laws that previously existed.
The term "common law" refers to the fact that these laws were common to all the king's courts across England. The expanded system of royal justice that emerged in the late 1100s, known as the "Common Law", aimed to create a unified legal system across the country. This was achieved by incorporating existing customary norms related to crime, family, property, and inheritance, while also introducing innovations in terms of procedure, such as emphasizing written documentation and the use of local juries.
Common law was later adopted in the United States, with each of the states and the national government of the new nation adopting it after the American Revolution. The influence of common law also spread to other parts of the world through the British Empire, with many former colonies retaining the common law system today.
Common law has evolved over time, adapting to changing social values and popular understandings. It provides a flexible framework that allows for interpretation, making it well-suited to address situations that may not have been contemplated at the time of its original enactment.
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Common law in the modern world
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 originated in England during the Middle Ages in the King's Court (Curia Regis), a single royal court based in Westminster, London. Over time, common law spread to North America during the colonial period and continues to be practised in the US, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom.
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This principle dictates that courts and judges follow previous rulings and decisions when dealing with similar cases. The flexibility of common law allows it to adapt to societal changes and new situations that were not contemplated by the legislature. This adaptability is particularly important as technology evolves and plays a growing role in our lives.
In a common law legal system, judges play a crucial role in interpreting and applying the law. They determine which precedents to apply in each case and can even establish new precedents in "cases of first impression" where no clear precedent exists. While lower courts can deviate from precedents if they are outdated or substantially different, higher courts have the power to overrule prior decisions as "bad law".
Despite its flexibility and adaptability, common law has been criticised for perpetuating 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 them. For example, in England until the 1970s, common law held that fathers were entitled to custody of children in cases of divorce, a bias that effectively trapped women in marriages.
In conclusion, common law remains a dynamic and influential legal system in the modern world. Its emphasis on precedent and judicial interpretation allows it to evolve and adapt to changing societal needs and technological advancements. However, it is important to continually re-evaluate and challenge past decisions to ensure that common law remains fair and equitable for all.
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Common law and marginalization
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". This means that common law is largely based on precedent, or judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
While common law may incorporate certain statutes, it is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This allows for some freedom for interpretation, which is particularly important as technology continues to evolve and become more present in our lives.
However, the common law system has historically led to the unfair marginalization or disempowerment of certain groups. Outdated or biased past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This makes it difficult for marginalized parties to pursue favourable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in England, common law held that fathers were entitled to custody of the children after a divorce, which kept women trapped in marriages. Feminists in the 19th and early 20th centuries often faced such difficulties when fighting for women's rights.
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 example, more than 21% of American families are marginalized by intestacy classifications, and such forms are more common among individuals of colour and those with less wealth. Additionally, non-traditional household and family structures are more common among lower socioeconomic status groups, with multigenerational households more prevalent among Black, Hispanic, and immigrant families.
Marginalized communities often face difficulties in accessing justice and enforcing their rights. Studies have been conducted to examine the role of courts and similar bodies in administering the laws that pertain to the entitlements of marginalized communities. These studies raise questions about the commitment of the state to law and human rights, as well as the impetus for law reform through litigation. For example, publications have explored the struggles of landless rural workers in Brazil, indigenous communities in Latin America, and peasants in China in accessing law and justice.
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Frequently asked questions
Common law is a body of law based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided".
Common law evolves over time by allowing some freedom for interpretation. It can adapt to situations that were not contemplated at the time by the legislature.
Common law originated in England during the Middle Ages, in the King's Court (Curia Regis). It was then spread to North America during the 17th and 18th centuries. Today, many countries around the world continue to rely on common law when resolving legal disputes.
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 offence. Common law, on the other hand, is generally uncodified and based on precedent.
Common law is flexible and can respond to changes in society. It does not require lawmakers to pass changes in statutes and codes, which can be time-consuming or may never happen.
