Cameron Miranda
Common law, also known as case law, is a body of law primarily developed through judicial decisions rather than statutes. It originated in the practices of the courts of English kings in the centuries following the Norman Conquest in 1066. 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 relies on scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. In this way, common law is created by judicial bodies, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court, rather than legislative bodies like the U.S. Congress. However, legislatures can subsequently codify common law rules from their state courts, either to give the rule permanence or to modify or replace it.
| Characteristics | Values |
|---|---|
| Creation | Common law is created by a judicial body, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. |
| Basis | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Adaptability | Common law can be adapted to situations unforeseen by the legislature. |
| Complexity | Common law systems are considerably more complicated than civil law systems. |
| Federal vs State | Most common law is found at the state level, but there is a limited body of federal common law. |
| Legislative Role | Legislatures may codify, modify, or replace common law rules. |
| Readability | Common law statutes tend to be more difficult to read than civil law statutes. |
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What You'll Learn
Common law is a body of unwritten laws based on legal precedents
The common law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is now practised in several countries, including the US, UK, Australia, Canada, Hong Kong, India, and New Zealand. In the US, common law operates alongside civil law, while the UK has a dual system of common and civil law.
The doctrine of precedent, or stare decisis, is central to common law. Stare decisis is a Latin phrase that means "to stand by things decided". In practice, this means that courts and judges are required to follow earlier decisions and rulings, or precedents, when dealing with similar cases in the future. This principle promotes stability and consistency in the legal system, as it ensures that similar cases are decided in a similar manner, regardless of subjective, personal viewpoints.
However, while lower courts generally must follow the decisions of higher courts, they do have some flexibility. Lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different. While rare, lower courts can also overturn a precedent.
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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 is created by a judicial body
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that places an emphasis on precedent while allowing some freedom for interpretation. Common law is created by a judicial body, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. It is worth noting that the US common-law system evolved from British legal traditions that spread to North America during the 17th and 18th centuries.
Common law influences decision-making in unusual cases where no clear outcome can be determined based on existing statutes or written rules of law. It is often used to adapt the law to situations not previously contemplated by the legislature. For example, the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court articulated a three-part test to determine the employment status of California workers. This decision was subsequently codified and expanded upon by the California Legislature, demonstrating the interplay between common law and legislative bodies.
While civil law is regularly updated, common law provides a degree of flexibility by allowing for interpretation and adaptation to unique circumstances. This flexibility can be advantageous when civil law fails to address a specific set of facts or a particular situation adequately. However, it is important to recognize that civil law statutes can provide clearer guidance in certain cases, especially when the legislature has diligently addressed the relevant facts and context.
In the United States, common law is primarily found at the state level, with each state legislature having the power to codify, modify, or replace common law rules from their courts. There is also a limited body of federal common law, which is created and applied by federal courts in the absence of controlling federal statutes. Federal common lawmaking is intended to protect uniquely federal interests, as demonstrated in the 2020 Supreme Court case of Rodriguez v. FDIC.
Overall, common law is a dynamic and flexible legal system that adapts to changing circumstances and fills in the gaps left by statutory law. While it is created and shaped by judicial bodies, it is subject to interpretation, modification, and codification by legislative bodies, demonstrating the complex interplay between different branches of government in shaping the law.
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Common law is adaptable to new situations
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". In other words, common law emphasizes precedent while allowing some freedom for interpretation. This allows common law to be adaptable to new situations.
For example, the U.K. has long had a common-law offense of "outraging public decency". In recent years, the authorities have used this ancient common law to prosecute a new intrusive activity called "upskirting". In February 2019, the U.K. Parliament passed the Voyeurism (Offences) Act, officially making upskirting a crime. This example demonstrates how common law can adapt to new situations and inspire new legislation.
Another example of common law adapting to new situations can be found in Ghana, which follows the English common law tradition inherited from British colonization. Ghana's laws are largely modified versions of imported law that are continuously adapting to the country's changing socio-economic and political realities. This showcases how common law can be flexible and responsive to societal changes.
In a common law system, judges need only follow precedent when making decisions, which can result in shorter court proceedings and save time and money. This efficiency is further enhanced by the ability of higher courts to overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility allows common law to adapt to changes in society and address situations not originally predicted by lawmakers.
While common law has the advantage of adaptability, it is important to recognize that civil law can sometimes be clearer and more detailed when the legislature has specifically addressed the precise set of facts applicable to a particular situation. Ultimately, the decision-making process in unusual cases may involve both common law and civil law, as they often exist in parallel within a dual legal system.
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Common law is more complicated in practice
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that places an emphasis on precedent while allowing some freedom for interpretation. The value of a common-law system is that the law can be adapted to situations not contemplated at the time by the legislature. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries.
However, in practice, common law systems are considerably more complicated. For example, civil law can be clearer than case law when the legislature has addressed the precise set of facts applicable to a particular situation. Civil law statutes tend to be more detailed than statutes written by common law legislatures, but this makes them more difficult to read. Common law is also created by different governmental bodies in each jurisdictional unit, adding to the complexity. For instance, in the US, common law is created at the state level, with a limited body of federal common law.
Furthermore, the interaction between common law and statutory law adds to the complexity. While statutory law is created by legislative bodies, such as Congress, common law is created by judicial bodies, such as the Supreme Court. Legislative bodies can take away common law rights, and they often subsequently codify common law rules from the courts, either to give the rule permanence or to modify or replace it with legislation. This back-and-forth between the legislative and judicial branches can lead to a complex legal landscape.
Additionally, the doctrine of stare decisis, or the adherence to settled decisions, comes into play. Lower courts are bound to follow the decisions of higher courts in the same jurisdiction, and more recent decisions and those of higher courts carry more weight. This hierarchy and the need to consider precedent can make common law more intricate in practice.
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Civil law can be clearer than common law
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is a system of law with a written constitution based on specific codes, such as civil, corporate, administrative, tax, and constitutional law. Civil law statutes tend to be more detailed than common law statutes, which can make them clearer.
Common law, on the other hand, 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 gives some freedom for interpretation, allowing the law to be adapted to situations not contemplated by the legislature. However, this can make it more complicated and less clear than civil law.
For example, in a common-law system, there is a greater emphasis on setting out all the terms governing the relationship between parties to a contract in the contract itself. In contrast, civil law implies many provisions into a contract by law, and parties cannot contract out of certain provisions. This can make civil law contracts clearer and more protective of both parties.
Additionally, civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. This standardized system aims to reduce bias and create consistent outcomes, making it clearer and more predictable than common law.
However, it's worth noting that common law has its advantages in certain situations. For example, common law can adapt to new situations not addressed by existing statutes, filling in gaps in the law. Nonetheless, civil law can be clearer than common law when it provides detailed and specific rules for a particular situation.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries.
Common law is created by a judicial body, such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. Lower courts are bound to follow the decisions of higher courts in the same jurisdiction.
Civil law is regularly updated, whereas common law emphasises precedent while allowing some freedom for interpretation. Civil law statutes also tend to be more detailed than common law statutes, making them more difficult to read.
Yes, legislatures may take away common law rights. However, modern jurisprudence will consider the statutory purpose or legislative intent and apply rules of statutory construction to reach decisions.
