Kara Sears
Common law, also known as case law, is a body of law that is primarily developed through judicial decisions and precedents rather than statutes. It originated in England in the Middle Ages and has since evolved into the legal systems found in the United States and most Commonwealth countries. Common law is based on stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. The presiding judge determines which precedents to apply when deciding a new case. While common law is not prevalent in the US, several states have statutes or allow for common law marriages. Today, several countries continue to rely on common law legal systems, which contrast with civil law systems that have a comprehensive code of statutes that outline procedures and punishments for offenses.
| Characteristics | Values |
|---|---|
| Basis | Judicial decisions and precedents |
| Sources | Plea rolls, Year Books, caselaw |
| Jurisdiction | Common law jurisdictions |
| History | Originated in the Middle Ages in England |
| Development | Evolved through judicial rulings and interpretations |
| Flexibility | Allows for interpretation and adaptation to new situations |
| Stability | Promotes stability and consistency through precedent |
| Dual System | Coexists with civil law in some countries |
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What You'll Learn
The evolution of common law
Common law, also known as case law, is a body of law primarily developed through judicial decisions instead of statutes. It originated in England 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. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The main sources for the history of common law during the Middle Ages are the plea rolls and the Year Books, which are currently deposited in the UK National Archives.
In the 13th century, yearly compilations of court cases known as Year Books were published, and they are known as the law reports of medieval England. From the 13th to the 16th centuries, when common law developed into a recognisable form, the common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had developed a body of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government.
Judge-made common law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. In England, judges have devised rules for dealing with precedent decisions. Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". Courts follow precedents established by previous decisions, and judges determine which precedents to apply in new cases.
Common law is not common in the US, but several states have statutes or allow for common-law marriage. Common law has also evolved in the US and most Commonwealth countries, and it stands in contrast to the civil law system, which has clear rules for how judges need to rule for specific disputes.
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Common law vs civil law
Common law, also known as case law or judge-made law, is a body of law that is primarily developed through judicial decisions and precedent rather than statutes. It originated in medieval England and is the legal system in many former British colonies or protectorates, including the United States. Common law is deeply rooted in stare decisis, which means "to stand by things decided". Here, the presiding judge determines which precedents to apply in deciding each new case. While lower courts generally follow the example set by higher courts, they can modify or deviate from precedents if they are outdated or if the current case is substantially different.
In contrast, civil law is a legal system rooted in the Roman Empire and is the most common legal system in the world today, practiced in about 150 countries. It is characterized by its reliance on comprehensive, codified sets of legal statutes created by legislators, such as the Napoleonic Code and the Bürgerliches Gesetzbuch. Civil law is generally more prescriptive than common law, with more provisions implied into contracts. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for offenses. Judicial authorities use the applicable civil code to evaluate the facts of each case and make legislative decisions.
One key difference between the two systems is their approach to precedent and written decisions. Common law places a strong emphasis on precedent, recognizing prior court decisions as legally binding. On the other hand, civil law judges tend to give less weight to judicial precedent and may be expressly forbidden from pronouncing general principles of law, as in the case of the Napoleonic Code.
Another distinction is the level of prescription in each system. Common law is less prescriptive, requiring all terms governing the relationship between parties to be explicitly stated in a contract. In contrast, civil law is more prescriptive, implying more provisions into contracts and allowing for ambiguities to be resolved by operation of law. This often results in shorter contracts in civil law jurisdictions.
While common law originated in England and is prevalent in countries with a historical connection to England, civil law has a broader reach, with many countries adopting features from one or both systems into their legal frameworks. Today, both the US and the UK operate under a dual system of common and civil law.
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Common law in the US
The US operates under a dual system of both common and civil law. While common law is not common among the US states, several states have statutes or allow for common law marriage if certain requirements are met. Common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without a formal registration of their union.
The development of common law can be traced back to the Middle Ages, with the earliest records of plea rolls and the Year Books, which served as the principal sources for the history of common law during this period. The doctrine of precedent, also known as stare decisis, emerged during the 12th and 13th centuries, shaping the collective judicial decisions based on tradition, custom, and precedent.
In the US, the process of lawmaking at the federal level involves the introduction of a bill, which is a proposal for a new law or a change to an existing one. Bills can originate from members of Congress or be proposed by citizens or groups through petitions. Once introduced, a bill is assigned to a committee for research, discussion, and potential amendments before being put to a vote. If approved by Congress, the bill is then considered by the President, who can sign it into law or veto it. In the case of a veto, Congress can vote to override it unless it is a pocket veto, which occurs when a bill remains unsigned when Congress is no longer in session.
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Common law in medieval England
Common law, also known as case law, is a body of law that is primarily developed through judicial decisions and precedent rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous rulings when resolving similar cases.
In medieval England, common law was a noisy affair, with oral debates, statutes recited from memory, and proclamations to announce statutes. The main sources for the history of common law in this period are the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin and bundled by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. The Year Books, first published in 1268, are known as the law reports of medieval England and provide insight into the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries.
The doctrine of precedent developed during the 12th and 13th centuries, drawing from tradition, custom, and precedent. Common law in medieval England was characterised by an emphasis on sound, with crying tests, oral traditions, and proclamations playing a significant role. For example, a Year Book from the late 13th century mentions a crying test as a condition for a husband to inherit his wife's property: "it is necessary that the issue be heard to cry or squall within the four [walls]."
During this period, common law was widely considered to derive its authority from ancient Anglo-Saxon customs and was defined as "unwritten law" (lex non scripta) in legal dictionaries. According to William Blackstone's declaratory theory, common law reaffirmed pre-existing customs rather than creating new laws. The modern definition of common law as "case law" or ratio decidendi, which serves as a binding precedent, was eventually adopted by notable writers such as A. V. Dicey and Oliver Wendell Holmes.
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Common law marriage
Common law, also known as judicial precedent, judge-made law, or case law, is primarily developed through judicial decisions rather than statutes. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
Common law originated in the practices of the courts of English kings following the Norman Conquest. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. 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.
In the United States, common-law marriage has existed since colonial times when America was a colony of England. In 1753, England abolished clandestine or common-law marriages with the Marriage Act, requiring marriages to be performed by a priest of the Church of England. However, this did not apply to the American colonies, and common-law marriage survived in colonial America.
To be considered a common-law marriage, couples generally need to meet certain requirements, including living together (although there is no statutory requirement for the length of time), having the legal right or "capacity" to marry, and intending to be married. While some jurisdictions may require certain documents to prove a common-law marriage, it is important to note that not all jurisdictions permit it. However, those that do not allow it will typically respect the validity of a common-law marriage lawfully entered into in another state or country.
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Frequently asked questions
Common law is a body of law that is primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided".
Common law is based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Common law is made by judges who devise rules on how to deal with precedent decisions. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent.
Common law is used in several countries today, including the United States, the United Kingdom, and most of the Commonwealth countries. Within the US, every state except Louisiana has a common law legal system.
