Keith Mack
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, a Latin phrase that means to stand by things decided. It is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. Common law is distinct from civil law, which relies primarily on codes and statutes. The principle of legality, a common law rule of statutory interpretation, safeguards the fundamental rights of citizens against government encroachment. It operates as a check and balance on parliamentary power, presuming that parliament does not intend to interfere with common law rights, immunities, and freedoms. However, the principle of legality is not a freestanding principle and is subject to parliamentary sovereignty. The interplay between common law and the principle of legality is complex, with some arguing that the principle of legality may lead to judicial overreach.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Other Names | Judicial precedent, judge-made law, or case law |
| Basis | Precedent, or rulings made in previous similar cases |
| Flexibility | Common law is flexible, as it can respond to changes in society. |
| Interpretation | Common law leaves the legal code open for interpretation. |
| Protection | The principle of legality in common law seeks to protect citizens from arbitrary power. |
| Safeguarding | The judiciary uses the principle of legality to safeguard rights when an ambiguity emerges in statutory interpretation. |
| Scope | The scope of 'fundamental rights' under the principle of legality remains open to judicial discretion. |
| Criminal Law | In criminal law, the principle of legality states that a criminal prohibition must be published and clearly stated to be valid. |
| Common Law Offences | Common law offences include cheating the public revenue (tax fraud). |
| Marriage | Common law marriage allows couples to be considered married without a formal union. |
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What You'll Learn
Common law and the protection of citizens' rights
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 practised in several countries, including the United States, Australia, Canada, the United Kingdom, and others.
Common law plays a significant role in protecting citizens' rights and freedoms. One of the key ways it does this is through the Principle of Legality, which acts as a check on parliamentary power. The Principle of Legality is a common-law presumption that safeguards citizens' fundamental rights, immunities, and freedoms from arbitrary interference by the government or parliament. It is based on the understanding that parliament is expected to create legislation with common-law principles in mind and not interfere with these established rights.
For example, in the case of Momcilovic v The Queen (2011), the High Court of Australia applied the Principle of Legality to protect an individual's right to liberty. The court held that a statute allowing the detention of a person for up to four hours for questioning did not override the common law right to liberty, as the statute lacked explicit language to justify such a departure from a fundamental right.
In another instance, the Northern Territory of Australia argued against the detention of a person beyond a reasonable period, citing the Principle of Legality. The High Court agreed, stating that the common law does not authorise the arrest or detention of a person solely for the purpose of questioning or investigation.
However, it is important to note that common law has been criticised for failing to actively promote human rights and prevent breaches of rights, particularly in the case of individuals with disabilities. Additionally, past decisions in common law can shape future rulings, potentially perpetuating outdated or biased interpretations.
While common law provides a framework for protecting citizens' rights, it is often complemented by constitutional charters or bills of rights, such as the Bill of Rights in the United States, which further safeguard these rights and freedoms.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without a marriage license or ceremony. Instead, it is an agreement between two people who intend to be married and live together as a married couple, presenting themselves as such to the world.
The term "common-law marriage" is often used incorrectly to describe cohabitation or other legally formalized relations. While these relationships may be called "common-law marriage", they are not legally recognized as marriages. True common-law marriages are legally binding in some jurisdictions, but not in others. For example, in the United States, common-law marriage is recognized in some states but not in others. In Canada, couples in marriage-like relationships may be granted many of the rights and responsibilities of a marriage, but they are not legally considered married.
The history of common-law marriage is rooted in ancient traditions. In medieval Europe, marriage was under the jurisdiction of canon law, which recognized as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses. In ancient Greece and Rome, marriages were private agreements between individuals and estates. Over time, marriage laws evolved, with the Catholic Church forbidding clandestine marriage at the Fourth Lateran Council in 1215, requiring all marriages to be announced in a church by a priest. In 1753, England abolished common-law marriages with the Marriage Act, which required marriages to be performed by a priest of the Church of England. However, this did not apply to the American colonies, where common-law marriage survived and is still recognized in some states today.
The requirements for common-law marriage vary depending on the jurisdiction. Generally, both partners must have the legal capacity to marry, which typically means being at least 18 years old and not already married to someone else. They must intend to be married and behave as a married couple, holding themselves out to friends, family, and the public as such. While there is no statutory requirement for the length of time a couple needs to live together, longer cohabitation generally strengthens the case for common-law marriage. In some jurisdictions, such as the state of Alabama, common-law marriage has been abolished, while in others, it is still recognized as valid.
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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. 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 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.
Common law is more malleable than statutory law. Common law courts are not absolutely bound by precedent, but they can reinterpret and revise the law without legislative intervention to adapt to new trends. Common law evolves gradually over time, allowing the law to change substantially without a sharp break, reducing disruption.
Civil law, on the other hand, is a legal system 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 today, practised in about 150 countries. Unlike common law, civil law relies on legal codes that function as the primary source of law. Civil law judges tend to give less weight to judicial precedent and may be forbidden from pronouncing general principles of law.
A key difference between the two systems is their approach to precedent and written decisions. Common law places great weight on judicial precedent, recognising prior court decisions as legally binding. In contrast, civil law systems emphasise the importance of legal codes and may give less weight to precedent. Civil law systems are generally more prescriptive than common law systems, which are less prescriptive and provide extensive freedom of contract. In a common law system, it is important to set out all the terms governing the relationship between the parties in a contract, while civil law systems imply various provisions into a contract and may result in shorter contracts.
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Common law and criminal law
Common law, on the other hand, 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 more malleable than statutory law, as common law courts are not absolutely bound by precedent but can reinterpret and revise the law without legislative intervention. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
In a justice system that depends on common law, rulings or decisions of courts serve as precedent for all future cases dealing with similar circumstances. Judges also have the authority to create new laws in such cases. For example, in the United States, common law crimes are crimes that were originally defined by judges.
The Principle of Legality is a common law presumption that seeks to protect citizens from arbitrary power. It presumes that Parliament does not intend to interfere with fundamental common law rights, immunities, and freedoms. The judiciary uses the Principle of Legality to safeguard such rights when an ambiguity emerges in statutory interpretation.
In conclusion, while criminal law deals with the punishment of criminal behaviour, common law refers to decisions made based on previous court rulings. Common law influences criminal law, but it does not set out the rules and principles that govern behaviour.
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Common law's flexibility
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law 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 is more malleable than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention. This flexibility allows common law to adapt to new trends in political, legal, and social philosophy.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is a flexible system that can evolve through a series of gradual steps, allowing the law to change substantially over time without sharp breaks. This flexibility can encourage good judgment by allowing judges to consider the economic consequences of their decisions and whether rules are being applied reasonably in the circumstances.
For example, in R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge considered the legal principles and the potential economic consequences for Soma of a judgment that prioritized legal principle over pragmatism. The judge's decision to curtail the SFO's costs order by £5,000, ordering Soma to pay a relatively small amount of £16,000, was seen as a fair and responsible outcome that balanced legal principles with practical considerations.
The flexibility of common law is particularly important in the evolving landscape of technology and its increasing presence in our lives. As technology advances, the ability of common law to interpret the legal code with flexibility will become increasingly valuable.
However, it is important to note that while common law provides flexibility in interpreting and applying legal rules and principles, it may not always be as flexible as it should be in preserving peace and stability in society. Additionally, past decisions in common law can shape future rulings, and outdated or biased precedents can lead to the marginalization or disempowerment of certain groups until societal changes prompt a judicial body to overturn them.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law systems have clear rules for how judges need to rule for many specific disputes.
The principle of legality is a common law rule of statutory interpretation that mandates that Parliament may only legislate to override constitutional norms using clear language. The principle of legality seeks to protect citizens from arbitrary power.
