Kara Sears
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. Common law systems place great weight on precedent and judicial decisions, and judges play a crucial role in interpreting and applying these precedents to specific cases. They are appointed or elected to office and are generally free from outside supervision, although they may face disciplinary action in cases of misconduct. Common law has evolved over time and is now used in countries such as England and the United States, influencing the decision-making process in unusual cases.
| Characteristics | Values |
|---|---|
| Basis of common law | Judicial decisions, legal precedents, and reports of decided cases |
| Common law systems | Countries that were former British colonies or protectorates, including the United States |
| Role of judges in common law | Presenting precedents that apply to a case, influencing the criteria that a jury uses to interpret a case |
| Judge appointment process | Appointed or elected to office, no competitive examination |
| Judge independence | Not subject to outside supervision or inspection, only administrative control is exercised by judicial colleagues |
| Judge accountability | Only liable for misconduct, such as abusing their office, and can be removed from office through impeachment or legislative processes |
| Judge tenure | Appointed for a limited probationary period, followed by a longer term subject to "election" based on their record |
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What You'll Learn
Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges are bound to follow the decisions and interpretations of previous similar cases when deciding a new case. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based on tradition, custom, and precedent.
Common law originated in England following the Norman Conquest in 1066. It established a unified legal system across the king's courts, gradually replacing the local folk and manorial courts. The early development of case law in the 13th century has been traced to Bracton's "On the Laws and Customs of England", which led to the yearly compilations of court cases known as Year Books. These are the principal source for knowledge of the developing legal doctrines, concepts, and methods in the period from the 13th to the 16th centuries, when common law took on a recognisable form.
The role of precedent in common law is in contrast to civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. 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, which forms the basis of civil law in many countries, expressly forbade French judges from pronouncing general principles of law.
In common law, the presiding judge determines which precedents to apply in deciding each new case. 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.
Common law is also influenced by institutionalized opinions and interpretations from judicial authorities and public juries. It sometimes proves to be the inspiration for new legislation, and it allows for some freedom in the interpretation of precedents. However, past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This can make it difficult for marginalised groups to pursue favourable rulings until popular thought or civil legislation changes the interpretation of common law.
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Judges are not subject to outside supervision
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems give great weight to precedent, while civil law judges tend to give less weight to judicial precedent.
In common law systems, judges play a crucial role in interpreting and applying the law. They are responsible for presenting the precedents that apply to a case, which can significantly influence the criteria that a jury uses to interpret and decide on a case. This power that judges hold means that they are expected to uphold certain standards of conduct. While they are not subject to outside supervision, they are expected to act with integrity and impartiality. For example, in the United States, judges are expected to follow a Code of Conduct that outlines various guidelines for their behaviour. These guidelines include expectations of patience, dignity, respect, and courtesy towards those with whom the judge interacts in an official capacity, such as litigants, jurors, witnesses, and lawyers. Judges are also expected to avoid any appearance of impropriety and to refrain from making public statements that could affect the outcome of a pending case or interfere with a fair trial.
In addition to behavioural expectations, the Code of Conduct for United States Judges also outlines restrictions on a judge's activities outside of their judicial duties. For example, judges are generally permitted to participate in and serve as officers or directors of nonprofit organisations, as long as those organisations are not engaged in proceedings that would ordinarily come before the judge. Judges are also allowed to assist these organisations in planning fundraising activities and may even solicit funds from other judges or family members, as long as they do not exercise supervisory authority over them.
While judges are not subject to outside supervision, they are expected to uphold the integrity and impartiality of the judicial system. They play a crucial role in shaping the law through their interpretation and application of precedents, and their conduct both inside and outside the courtroom can have a significant impact on public perception and trust in the judiciary. By adhering to a Code of Conduct, judges can maintain the high standards expected of them and ensure that their decisions are based on fairness and impartiality.
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Judges are appointed or elected to office
Common law is a body of unwritten laws based on legal precedents established by the courts. It is often contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems give significant weight to precedent, while civil law judges tend to give less weight to judicial precedent.
In common law, judges play a crucial role in interpreting and applying legal precedents to specific cases. They are responsible for presenting the precedents that apply to a case, which can significantly influence the criteria that a jury uses to interpret and reach a decision. This process, known as stare decisis, means that a judge is bound to follow the decision of an earlier judge in similar cases.
The appointment or election of judges is a debated topic, with arguments for both approaches. The debate centres on the ideals of judicial independence and accountability. Judicial independence refers to the concept that judges should be free from undue influence by political institutions, interests, or the general public. On the other hand, accountability emphasizes that public officials should be answerable for their decisions.
Some argue that judicial elections can threaten the independence of the judiciary by injecting politics into the process. Elections may also lead to ethical concerns, such as the influence of fundraising and the announcement of positions on laws, which can impact judicial impartiality. However, supporters of judicial elections highlight the benefit of democratic accountability. Elections allow for diversity in the judiciary and ensure that judges are directly answerable to the citizens they serve.
In terms of appointments, there are varying methods. Some suggest appointments by an independent and qualified committee, while others propose a nominating commission or a mixed approach involving the governor or state legislature. The American Bar Association (ABA) has long recommended gubernatorial appointments from a list of candidates compiled by a judicial nominating commission.
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Common law influences unusual case rulings
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. Common law systems place great weight on precedent, and judges present the precedents that apply to a case, influencing the criteria that a jury uses to interpret it.
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. This is because common law, also known as case law, relies on detailed records of similar situations and statutes, as there is no official legal code that can be applied to a specific case. The presiding judge determines which precedents apply to a case, and higher court decisions are binding on lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different.
The impact of common law on unusual case rulings can be seen in how past decisions 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, which marginalised women. This precedent was only overturned in the 1970s due to societal changes regarding women's rights.
Common law has also been influenced by Roman law, which laid the groundwork for the return of Roman law structural concepts in the 18th and 19th centuries. Additionally, common law decisions reflect both precedent and policy judgments drawn from economics, the social sciences, business, and foreign court decisions. For example, in the early 20th century, Louis Brandeis, a United States Supreme Court justice, was noted for his use of policy-driving facts and economics in his briefs.
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Common law can be contrasted with civil law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries including Egypt and the Francophone countries of the Maghreb and West Africa. 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.
The primary contrast between the two systems is the role of written decisions and precedent as a source of law. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The presiding judge determines which precedents apply to a particular case. The example set by higher courts is binding on cases tried in lower courts. This system promotes stability and consistency in the US 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.
Civil law, on the other hand, 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. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in systems where laws are applied differently from case to case.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions, which can result in elements of common law differing between districts.
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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 usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries.
In common law, judges present the precedents that apply to a case and significantly influence the criteria that a jury uses to interpret a case. Judges are appointed or elected to office and are not subject to outside supervision or inspection by any council of judges or a minister of justice.
Common law originated 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. It was developed primarily by judges rather than legislators until the late 19th century. English common law was further developed in the 13th century with the early development of case-law, as seen in Bracton's On the Laws and Customs of England.
