Cecily Zamora
Common law, also known as case law, is a body of customary law based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes and 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, where it was developed by judges for several hundred years before Parliament acquired legislative powers to create statutory law. The English common law system has evolved into the legal systems found in the United States, most Commonwealth countries, and other countries such as Australia, Canada, and India. In common law systems, judges rely on case law and legal precedent to guide their decisions, promoting stability, consistency, and adaptability to unforeseen situations.
| Characteristics | Values |
|---|---|
| Basis of common law | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Sources of common law | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Common law vs civil law | Common law is contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. |
| Role of judges in common law | Judges play a crucial role in common law systems by determining which precedents apply to a particular case and making decisions based on those precedents. |
| Stability and consistency | Common law promotes stability and consistency as outcomes are based on previous caselaw rather than subjective viewpoints. |
| Efficiency | Common law allows for efficient court proceedings as judges only need to follow precedent, saving time and resources. |
| Adaptability | Common law is adaptable to unforeseen situations as it is not limited to specific statutes and can address unique scenarios. |
| Development of common law | Common law has evolved over time, with the modern system prioritizing rights over procedure. |
| Country-specific variations | Common law may differ between countries and jurisdictions, with variations in the United States, England, and Scotland. |
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What You'll Learn
Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. It is also contrasted with statutory law, which is derived from statutes. Common law is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law is the most common legal system in the world, practised in about 150 countries. 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, and there are a number of provisions implied into a contract under this system.
In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. In many civil law countries, a separate administrative law governs PPP arrangements. In a common law system, judicial decisions are binding and decisions of the highest court can only be generally overturned by that same court or through legislation. Common law is also distinguished from ecclesiastical law and is occasionally used to denote the law common to the country as a whole, as opposed to law with local applications.
Scotland has a unique system that combines elements of both uncodified civil law and its own common law. Historically, Scottish common law differed in that the use of precedent was subject to the courts seeking to discover the principle that justifies a law rather than searching for an example as a precedent.
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Judge-made common law
Common law promotes stability and consistency in the legal system as it is based on previous case law instead of subjective viewpoints. It also allows for adaptability to unforeseen situations as judges can address scenarios not originally predicted by lawmakers. This is particularly useful when lawmakers cannot predict all the situations in which courts may need to apply the laws.
In a common law system, judges presiding over a case determine which precedents apply. They can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. Lower courts follow the example set by higher courts, although lower courts can rarely overturn the precedent.
Common law is practised in several countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It has evolved from a British tradition that spread to North America during the colonial period. In the US, common law rules were originally fashioned based on English common law.
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Common law in England
The English common law system originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court established for most of the country in Westminster, near London. It replaced Anglo-Saxon law following the Norman Conquest in 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had a set of rules similar to those used by the Germanic peoples of northern Europe, with local customs governing most matters and the church playing a significant role in governance.
During the Late Medieval Period, English law was codified through judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. The law developed in England's Court of Common Pleas and other common law courts, which became the law of the colonies settled under the Crown of England and later, the United Kingdom. The early development of case law in the 13th century is attributed to Bracton's "On the Laws and Customs of England", leading to the yearly compilations of court cases known as Year Books, with the first extant publication in 1268. These Year Books are the principal source of knowledge regarding the evolving legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law took on a recognisable form.
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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. Common law is derived from judicial decisions instead of statutes. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is practised in several other countries, including the United Kingdom, Canada, and Australia.
In the US, common law is a prominent part of the legal system, influencing the decision-making process in unusual cases where existing statutes or written rules of law do not apply. American courts originally fashioned common law rules based on English common law. Over time, the American legal system developed to create its own common law rules, either from direct precedent or by analogy to comparable areas of decided law.
The US Supreme Court has held that federal courts hearing cases under their diversity jurisdiction had to apply the statutory law of the states, but not the common law developed by state courts. The Supreme Court allowed federal courts to make their own common law based on general legal principles. In the case of Erie v. Tompkins, the federal common law was limited to some jurisdictions stated in the Constitution, such as admiralty, and possibly some areas outside the traditional jurisdiction of state law.
At the state level, legislatures often codify common law rules from their state courts, either to give the rule permanence, modify it, or replace it with legislation. For example, in 2018, the California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court articulated a three-part test for determining whether California workers were independent contractors or employees. The California Legislature responded by creating a new section in the Labor Code, codifying and expanding on the court's holding.
While common law is a significant aspect of the US legal system, none of the common law systems in the United States are purely common law. The US legal system also includes numerous codified statutes that courts must consider. However, the principle of stare decisis remains constant, where prior court decisions interpreting a statute are considered precedent and binding.
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Common law in other countries
Common law is one of the four major legal traditions, alongside civil law, customary law, and religious law. It is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law is the basis of the legal systems of many countries, especially those that were formerly colonized by England, Great Britain, or the United Kingdom. These include Australia, Canada, Ghana, Hong Kong, India, New Zealand, and the United States. The Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St. Vincent and the Grenadines, Saint Kitts and Nevis, and Trinidad and Tobago also follow common law.
In the United States, the Uniform Commercial Code (UCC) is an example of a codified framework based on common law principles. The UCC has been enacted in all 50 states and has been considered one of the most significant developments in American law. Outside the United States, parties in different jurisdictions often choose the law of England and Wales, especially in former British colonies and Commonwealth members.
In addition to former colonies, some countries that were not colonized by England, such as Japan, France, and Germany, often choose the law of New York for their contracts due to its depth and predictability. Similarly, American corporations and contracts related to corporate law issues often include a Delaware choice of law clause because of Delaware's extensive body of law on these issues.
While common law systems promote stability and consistency, civil law systems offer more stability in the short run as it is harder for financial investors to move capital out of companies in search of higher returns. Civil law systems also make it easier to impose social regulations to protect jobs or the environment.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
Common law relies on caselaw and legal precedent to guide decisions, while civil law relies primarily on codes and statutes. Civil law has a comprehensive code of statutes that outlines everything from procedures for handling claims to the punishment for offenses.
Common law promotes stability and consistency because everyone involved knows that the outcome will be based on previous caselaw and not on subjective, personal viewpoints.
Judges presiding over a case determine which precedents apply to that particular case. They draw from institutionalized opinions and interpretations from judicial authorities and public juries.
At the state level, legislatures often codify common law rules from the courts of their state to give the rule the permanence afforded by a statute, to modify it, or to replace the outcome entirely with legislation.
