Gavin Howe
Common law is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. The primary contrast between the two systems is the role of written decisions and precedent as a source of law, with common law systems placing great weight on precedent. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries, and the doctrine of precedent developed during the 12th and 13th centuries. Judges present the precedents that apply to a case, and this can significantly influence the criteria that a jury uses to interpret a case.
| Characteristics | Values |
|---|---|
| Nature of common law | A body of unwritten laws based on legal precedents established by the courts |
| Common law vs civil law | Common law is contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators |
| Sources of common law | Judge-made common law, which is based on institutionalized opinions and interpretations from judicial authorities and public juries |
| Role of precedent | Common law places great weight on precedent, while civil law judges tend to give less weight to judicial precedent |
| Flexibility | Common law is more malleable than statutory law, and common law courts can reinterpret and revise the law without legislative intervention |
| Evolution of common law | Common law evolves gradually over time, reducing disruption |
| Doctrine of precedent | Developed during the 12th and 13th centuries, based on tradition, custom, and precedent |
| Stare decisis | A precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases |
| Binding nature | Inferior courts are bound by the precedent of superior courts, but they can choose to modify or deviate from outdated precedents or those substantially different from the current case |
| Criticisms | Philosopher Jeremy Bentham criticized the development of legal precedent as overly reactive and unfairly retroactive, while attorney Michael Trotter blamed overreliance on precedent as a factor behind escalating legal costs |
| Super precedents | Some constitutional scholars propose the idea of "super precedents" that are fundamental to American justice and are considered impervious to overruling |
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What You'll Learn
Common law is more malleable than statutory law
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 that courts follow precedents established by previous decisions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is more malleable than statutory law, which is already written and simply needs to be applied to a specific case. Common law is derived from its original appearance in medieval England, and it is still very much in effect in the US and other places today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
Common law is not as rigid as statutory law, which is created through a formal process of drafting, debate, and voting. Common law can be revised or reinterpreted by judges without legislative intervention. It evolves gradually over time, adapting to new trends and philosophies. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law to align with new developments in political, legal, and social philosophy. This flexibility allows common law to better address changing societal needs and values as judges interpret and apply legal principles in light of contemporary circumstances.
For example, in the context of the women's rights movement in the 19th and early 20th centuries, common law in England as late as the 1970s held that fathers were entitled to custody of children during divorce, effectively trapping women in marriages. This outdated precedent was eventually overturned due to societal changes, illustrating the malleability of common law.
While common law provides flexibility and adaptability, it also has limitations. The reliance on precedent can lead to the marginalization or disempowerment of certain groups, as past decisions continue to shape future rulings until societal changes prompt a shift in interpretation. This dynamic can make it challenging for marginalized parties to secure favourable rulings until popular thought or civil legislation influences the interpretation of common law.
In summary, common law is more malleable than statutory law due to its ability to be revised or reinterpreted by judges without legislative intervention. It adapts to new trends and philosophies, ensuring that societal needs and values are considered in the interpretation and application of legal principles. However, the nature of common law, rooted in stare decisis, can also present challenges in terms of inclusivity and representation, requiring societal pressure to drive changes in interpretation.
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Common law vs civil law
Common law and civil law are two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems. Common 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, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. Common law systems place great weight on precedent, and a judge presiding over a case determines which precedents apply to that particular case.
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 systems are characterized by their 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 a contract. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
Common law systems trace their history to English common law, while civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. Common law is practiced in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and some former British colonies or protectorates, including the United States. Civil law is the world's most common legal system, practiced in about 150 countries, including Continental Europe, Mexico, most of Central and South America, and some African countries.
In terms of the role of precedent, common law systems heavily rely on judicial precedent, with past decisions shaping future rulings until societal changes prompt a judicial body to overturn the precedent. While civil law judges tend to give less weight to judicial precedent, with the Napoleonic Code even forbidding French judges from pronouncing general principles of law. However, it is important to note that in some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions.
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Stare decisis
Common 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. The form of reasoning used in common law is known as casuistry or case-based reasoning.
While stare decisis promotes stability and consistency in the legal system, it is not an "inexorable command". There are exceptions to its application. For example, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Additionally, judges may offer reasons or legal nuances to avoid following precedential decisions or to overturn prior rulings if they are deemed to be unjust or no longer supported by societal changes.
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Judges can reinterpret and revise the law
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 systems place great weight on precedent, and judges are typically required to adopt the interpretation of the law used by previous judges in similar cases.
However, judges in common law systems do have the power to reinterpret and revise the law. While they are generally bound by precedent, they can, in certain circumstances, reinterpret the law without legislative intervention. This is particularly true in "cases of first impression", where there is no clear precedent or legislative guidance. In these situations, judges are empowered to resolve the issue and establish new precedent.
For example, the common law may be reinterpreted or revised to adapt to new trends in political, legal, and social philosophy. This allows the law to change gradually over time, reducing disruption. Additionally, lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different. In rare cases, lower courts may even overturn a precedent.
The process of revising the common law may involve multiple drafts and revisions before the final version is endorsed and adopted. This process can be complex and time-consuming, but it allows for a more flexible and adaptable legal system.
Overall, while common law systems heavily rely on precedent, judges play a crucial role in interpreting and revising the law to ensure it remains relevant and responsive to societal changes.
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Precedent is case-by-case
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. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
In common law, the judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the legal justice system. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.
Precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. It dictates that a court's decision must lead to a cohesive and predictable result. In theory, lower courts are generally not bound by the precedents of higher courts. Still, in practice, they generally defer to them for predictability. As a result, the precedent of courts of last resort, such as the French Cassation Court and the Council of State, is recognized as binding on lower courts.
In many cases, judicial decisions are authoritative only to the parties to the dispute, and this is known as the 'relative force' of judicial decisions. This means that only the parties to the dispute may benefit from the authoritativeness of the decision. However, if a similar dispute arises between other parties in the future, the later court may be prevented from reaching a legally justified decision by merely following precedent. Typically, the obligation of later courts to follow precedent applies when the precedent and the present case are legally the same, and their similarities are relevant for the law.
While common law places great weight on precedent, civil law judges tend to give less weight to judicial precedent. For instance, the Napoleonic Code expressly forbade French judges from pronouncing general principles of law. In some civil law jurisdictions, the judiciary does not have the authority to invalidate legislative provisions.
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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.
A precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases.
Common law relies on detailed records of similar situations and statutes to determine which precedents apply to a particular case. The decisions of higher courts are generally binding on lower courts.
Common law courts are not absolutely bound by precedent. They can reinterpret and revise the law to adapt to new trends in political, legal, and social philosophy.
Philosopher Jeremy Bentham criticised the development of legal precedent as overly reactive and unfairly retroactive. He compared it to "dog law", where laws are made based on past behaviours.
