Kara Sears
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages and was spread to colonies of the British Empire, including the United States, Canada, Australia, New Zealand, and India, among others. This legal system gives significant weight to judicial precedent and the style of reasoning inherited from the English legal system. The distribution of common law was influenced by colonial strategies and the specific characteristics of the colonies, such as population density and climate. As a result, many former colonies continue to have legal systems rooted in common law today, reflecting its enduring occidental legacies.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on customary law and judicial decisions embodied in reports of decided cases. |
| History | Common law originated in the practices of the courts of English kings following the Norman Conquest. |
| Geographic Spread | Common law was spread by the British Empire to its colonies, including the United States, Canada, Australia, New Zealand, Hong Kong, India, and other Commonwealth nations. |
| Judicial Precedent | Common law is based on stare decisis, or "to stand by things decided," where judges rely on past judicial decisions and interpretations as precedents for future cases. |
| Independence of Judges | Common law systems often provide more independence to judges, who have the power to interpret and apply precedents. |
| Use of Juries | Common law systems typically incorporate the use of juries in the judicial process. |
| Case Law | Common law accepts case law as a source of law, relying on detailed records of similar situations due to the absence of an official legal code. |
| Economic Impact | The adoption of common law in former colonies has been linked to economic outcomes, with correlations suggesting structural differences between common and civil law influence economic development. |
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What You'll Learn
Common law's colonial legacy
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England following the Norman Conquest, gradually supplanting local folk courts and manorial courts. The English legal system was then spread across the British Isles, first to Wales, then to Ireland, and later to overseas colonies. Many former colonies, including the United States, Canada, Australia, and New Zealand, retain the common law system today.
The distribution of common law was influenced by colonial strategies, which took into account the colonies' level of endowments. Common law was more effectively implanted in sparsely populated territories with temperate climates, and the form of colonial rule in British colonies mediated between pre-colonial endowments and post-colonial legal outcomes. This resulted in a negative relationship between pre-colonial population density and settler mortality with legal outcomes for common-law countries.
As a result of colonialism, the legal systems of the world are largely divided between common law and civil law traditions. French colonies inherited French civil law, while British colonies inherited English common law. This legacy continues to shape the legal frameworks of these countries, with common law jurisdictions giving great weight to judicial precedent and the style of reasoning inherited from the English legal system.
The impact of colonialism on the legal systems of former colonies has been the subject of academic study and debate. The literature suggests that the correlations between economic outcomes, legal rules, and legal origins are pervasive, indicating that structural differences between common and civil law have significant implications for economic outcomes.
In summary, common law has a colonial legacy that began with the spread of the English legal system to the British colonies and was later continued by the British Empire. Today, common law jurisdictions are found around the world, with approximately one-third of the global population living in countries that follow common law or mixed legal systems that integrate common law and civil law.
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![The Common Law; Its Origin, Sources, Nature, and Development, and What the State of New York Has Done to Improve Upon It, by Charles P. Daly 1894 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
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 draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England following the Norman Conquest, and was spread to the British colonies during the 17th and 18th centuries. Many former colonies, including the United States, retain the common law system today.
The US common-law system is a direct result of British colonial rule. During the colonial period, England spread its legal system across the British Isles, first to Wales, then to Ireland, and eventually to its overseas colonies. This process was continued by the later British Empire, which established a unified legal system that supplanted local folk and manorial courts. As a result, common law became the dominant legal system in the American colonies, and it has persisted even after the US gained its independence.
The use of common law in the US has had a significant impact on its legal system and culture. It has contributed to the development of a unified legal framework that applies across the country, providing a consistent approach to legal decision-making. Common law also influences the creation of new legislation, as it often serves as inspiration for enacting new laws. Additionally, the acceptance of case law as a source of law has empowered judges and granted them a level of independence in interpreting and applying the law.
However, the adoption of common law in the US also has its limitations and criticisms. As a colonial legacy, the implementation of common law was influenced by the specific conditions and characteristics of the colonies. This has resulted in varying levels of effectiveness in different contexts. Additionally, common law may not always lead to superior legal outcomes compared to civil law systems, particularly in colonies with high pre-colonial population density and settler mortality.
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Common law in the British Empire
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It established a unified legal system, gradually supplanting the local folk courts and manorial courts. England spread the English legal system across the British Isles, first to Wales, then to Ireland, and later to overseas colonies. This process was continued by the later British Empire, which spread common law to colonies like India, Pakistan, and Bangladesh.
When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. After the failed rebellion against the British in 1857, the British Parliament took over control of India from the British East India Company, and British India came under the direct rule of the Crown. The present judicial system of India, Pakistan, and Bangladesh derives largely from the British system and has little correlation to the institutions of the pre-British era.
Many former colonies, including those in the Caribbean, retained the common law system even after independence. These common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law systems are also found in other former British colonies and Commonwealth members, such as Australia, Canada, Hong Kong, New Zealand, and the United States.
In contrast to common law, 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 punishments for offenses. While civil law is regularly updated, it aims to create order and reduce bias in the legal system. Common law, on the other hand, draws from institutionalized opinions and interpretations from judicial authorities and public juries, aiming to establish consistent outcomes by applying the same standards of interpretation.
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Common law in England
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The common law was common to all the king's courts across England and originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
Prior to the Norman Conquest, much of England's legal business took place in local folk courts in its various shires and hundreds. A variety of other individual courts also existed across the land, including urban boroughs and merchant fairs holding their own courts, and large landholders also held their own manorial and seigniorial courts as needed. The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges, and literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was later applied in the English church courts. However, the revived Roman law was less influential in England than elsewhere, despite Norman dominance in the government. This was due to the early sophistication of the Anglo-Norman system.
The English common law did not originally consist of substantive rights but rather of procedural remedies. Over time, these remedies have produced the modern system in which rights are seen as primary over procedure. Until the late 19th century, English common law was primarily developed by judges rather than legislators. The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in the government.
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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 deeply rooted in stare decisis, which means "to stand by things decided". Common law originated in England and was spread to the British colonies in North America, Wales, Ireland, and elsewhere during the colonial period. Many former colonies, including the United States, Canada, Australia, and India, retain the common law system today, directly linking their legal systems to their colonial past.
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 later influenced by Napoleonic, Germanic, canonical, and feudal codes. Civil law systems rely on legal codes as the primary source of law, rather than judicial precedent. While common law is based on unwritten laws and past judicial decisions, civil law is characterised by its reliance on written legal codes.
One key difference between the two systems is their approach to precedent. Common law systems heavily emphasise stare decisis, where past judicial decisions are recognised as legally binding precedents. In civil law systems, judges tend to give less weight to judicial precedent and may even be forbidden from pronouncing general principles of law, as in the case of the Napoleonic Code. Civil law systems aim to create standardised codes to ensure consistent outcomes and reduce bias, while common law systems strive for consistency by applying the same standards of interpretation.
Another distinction lies in their treatment of contracts. Common law systems generally have extensive freedom of contract, with few provisions implied 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 contracts, such as equal bargaining provisions, and place less importance on including all terms in the contract. Civil law codes may introduce major reforms or start anew, whereas common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
In terms of geographical distribution, common law is prevalent in former British colonies, while civil law is the most common legal system worldwide, practised in about 150 countries. Approximately one-third of the world's population lives in common law jurisdictions or mixed legal systems that integrate common law and civil law. The distribution of common law was influenced by colonial strategies and was more effectively implanted in sparsely populated territories with a temperate climate.
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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 or judge-made law.
Common law originated in England and was spread to Wales, Ireland, and overseas colonies during the colonial period. Many former colonies, including the United States, Canada, Australia, and India, retain the common law system today.
Civil law is a comprehensive, codified set of legal statutes created by legislators, while common law is based on judicial decisions and precedents. Civil law clearly defines the cases that can be brought to court and the procedures for handling claims, while common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The distribution of common law was influenced by the colonial strategies of the British Empire. It was more effectively implanted in sparsely populated territories with a temperate climate, and it was spread to the colonies through the English legal system.
