Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England in the Middle Ages and was brought to the US by the first English colonists. After the American Revolution, common law was adopted by each of the states and the national government of the new nation. The US operates under a dual system of both common and civil law.
| Characteristics | Values |
|---|---|
| Basis of common law in the US | Common law in the US is based on common law principles of England, equity principles, Christianity, and ecclesiastical courts. |
| Common law definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Common law vs civil law | Common law relies on caselaw and legal precedent, while civil law relies on codes and statutes. |
| Influence of ecclesiastical laws | There is a difference of opinion on whether ecclesiastical laws are part of common law in the US. |
| Role of judges | Judges are bound by the principle of stare decisis, or precedent, when interpreting statutes. |
| Role of higher courts | Decisions made by higher courts are typically binding on lower courts in the same jurisdiction. |
| State adoption | Each state adopted common law after the American Revolution, and new states also adopted it when formed. |
| Influence on legislation | Common law has sometimes furnished the basis for new legislation, such as the UK's Voyeurism (Offenses) Act. |
| Application | Common law still has practical applications in areas like contract law and the law of torts. |
| Criticism | Critics argue that common law can lead to unfair marginalization or disempowerment of certain groups due to outdated or biased past decisions. |
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What You'll Learn
The adoption of common law in the US
Common law in the US is rooted in English common law, which dates back to the Middle Ages and the King's Court (Curia Regis). It was brought to the US continent by the first English colonists, who claimed it as their birthright.
One notable example is the colony of New York, which had two distinct legal systems in the 17th century. On Manhattan Island and along the Hudson River, courts modelled on those of the Netherlands resolved disputes according to Dutch customary law. In contrast, English courts on Long Island, Staten Island, and Westchester administered a crude variant of English common law without the involvement of lawyers. When the English regained control of New Netherland, they imposed common law on all colonists, including the Dutch, leading to a period of legal codification in the 19th century.
After the American Revolution in 1776, common law was adopted by each of the states and the national government of the new nation. As new states were formed, they also adopted the common law system, either explicitly or through judicial decisions. Massachusetts became the first state to establish an official Reporter of Decisions, which served as a reference for other states' common law.
While the US legal system has evolved and now includes codified statutes that courts must consider, the principle of stare decisis, or precedent, remains a constant in US common law. This means that prior court decisions interpreting a statute are considered binding, influencing future rulings and shaping the legal landscape in the US.
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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)
The influence of English common law
Following the American Revolution in 1776, common law was adopted by the newly formed states and the national government. Massachusetts played a pivotal role in establishing an official Reporter of Decisions, which became a key reference for other states' common law. The US federal courts, however, relied on private publishers until after the Civil War, only transitioning to government publishing in 1874.
While the US legal system has evolved to include codified statutes, the principle of stare decisis, or precedent, remains a cornerstone of US common law, directly influenced by English common law traditions. This means that prior court decisions interpreting a statute are considered binding in future cases with similar circumstances.
In summary, the influence of English common law in the US is evident in the historical adoption of common law by the colonies, the development of legal precedents, the influence of equity and ecclesiastical principles, and the enduring importance of stare decisis in US common law systems.
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Common law vs civil law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is primarily contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law originated in medieval England, while civil law is rooted in the Roman Empire. Common law systems place great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
Common law is less prescriptive than civil law. Common law systems generally allow extensive freedom of contract, with few provisions implied into the contract by law. In contrast, civil law systems imply various provisions into a contract, such as equal bargaining provisions to protect the weaker party. Civil law codes clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
In the United States, common law was imposed on all colonists, including Dutch settlers in New Netherland (later known as New York). Today, the US operates under a dual system of both common and civil law. Louisiana is the only US state whose private civil law is based heavily on French and Spanish codes rather than English common law.
Common law still has practical applications in some areas of law, such as contract law and the law of torts. It can also furnish the basis for new legislation. For example, the UK recently passed the Voyeurism (Offences) Act, which criminalized "upskirting", an ancient offence under common law.
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Common law and marginalization
Common law is a body of unwritten laws based on legal precedents established by the courts. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. The goal of common law is to establish consistent outcomes by applying the same standards of interpretation.
In the United States, common law began in the original thirteen colonies, which inherited English common law due to their colonial status. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The United States federal courts relied on private publishers until after the Civil War, and only began publishing as a government function in 1874.
While common law has been a source of legislation in the US, it has also been associated with marginalization and disempowerment of certain groups. The traditions of common law have led to unfair outcomes, and past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic creates challenges for marginalized parties seeking favourable rulings, as they must often wait for popular thought or civil legislation to evolve before interpretations of common law can be altered.
For example, in the 19th and early 20th centuries, feminists fighting for women's rights often faced difficulties due to common law traditions. In England, as late as the 1970s, common law held that fathers were entitled to custody of children in cases of divorce, creating a bias that effectively trapped women in marriages. Marginalization can also occur through the legal classification of individuals or groups, which can transform inherently ordered social classifications into consequential legal categories. For instance, intestacy laws in the United States can marginalize certain family structures, particularly those of individuals of colour and those with less wealth.
Furthermore, the very process of making, implementing, and interpreting common law inevitably creates margins by determining what falls within the scope of the law and what does not. Appeal judgments in the common law tradition can marginalize certain aspects of a case by relegating them to obiter dicta, or remarks that are not central to the key legal points of the decision. These remarks are not excluded from the law but may be assigned varying levels of significance depending on the circumstances.
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Common law in practice
Common law, a body of unwritten laws based on legal precedents established by the courts, still has practical applications in some areas of law in the US. The US operates under a dual system of both common and civil law. 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.
Common law was first imposed in the US in the 17th century when the English recaptured the colony of New York from the Dutch. At the time, New York had two distinct legal systems: on Manhattan Island and along the Hudson River, courts modelled on those of the Netherlands resolved disputes in accordance with Dutch customary law. On Long Island, Staten Island, and in Westchester, English courts administered a variant of common law from Puritan New England, practised without lawyers. When the English regained control, they imposed common law on all the colonists, including the Dutch.
After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law. The US federal courts relied on private publishers until after the Civil War, only publishing as a government function in 1874.
Common law has furnished the basis for new legislation to be written. For example, the UK has long had a common-law offence of "outraging public decency". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, which made "upskirting" a crime. Authorities had previously used the ancient common law to prosecute this intrusive activity.
Common law continues to be applied in contract law and the law of torts. It includes judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
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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 a system of law that relies on caselaw and legal precedent to guide decisions.
Common law in the US can be traced back to various sources, including the common law principles of England, equity principles, Christianity, and ecclesiastical courts. The first English colonists brought the common law system with them, and after the American Revolution, common law was adopted by each of the states and the national government of the new nation.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It centres around a standard code of statutes that outlines procedures and punishments. Common law, on the other hand, draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Common law still has practical applications in areas such as contract law and the law of torts. It can also serve as the basis for new legislation, such as in the UK where the ancient common-law offence of "outraging public decency" was recently used to prosecute "upskirting".
