Gavin Howe
The common law method of deciding cases, also known as case law, is a system of law that relies on judicial decisions and precedents rather than codified statutes. It is deeply rooted in the principle of stare decisis, which means to stand by things decided. This means that judges in common law systems look to previous rulings in similar cases to decide how to rule in the current case. This method of deciding cases developed in England and was brought to the American colonies, where it spread during the 17th and 18th centuries. Today, common law systems can be found in many countries around the world, including the United States, Australia, Canada, and the United Kingdom.
| Characteristics | Values |
|---|---|
| Name | Common law |
| Other names | Judicial precedent, judge-made law, case law |
| Basis | Judicial decisions and precedents |
| Not based on | Codified statutes |
| Origin | England |
| Influenced | Legal system in the United States, most member states of the Commonwealth, Ireland, and Scotland |
| Principle | Stare decisis (Latin for "to stand by things decided") |
| Exceptions | Lower courts may modify or deviate from precedents if they are outdated or if the current case is substantially different. |
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What You'll Learn
Common law's evolution from Anglo-Saxon law
Common law, also known as case 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". This means that judges in common law systems rely on previous rulings, or caselaw, to guide their decisions.
The common law system originated in England following the Norman Conquest of 1066. It is believed to have evolved from Anglo-Saxon customs and legal traditions, such as the jury, ordeals, the penalty of outlawry, and writs. Anglo-Saxon law was the legal system of Anglo-Saxon England from the 6th century until the Norman Conquest. It was a form of Germanic law based on unwritten customs (known as folk-right) and written laws enacted by kings with the advice of their witan or council.
The laws were written in the vernacular, derived from the West Saxon dialect, and were relatively free of Roman influence, which was more prominent in the Latin-written laws of mainland Europe. The Anglo-Saxons also developed a system of assemblies or moots, which historians often refer to as courts, though they differed from the specialised law courts that developed under the Angevin government.
By the later Anglo-Saxon period, a system of courts had developed to administer the law, with enforcement carried out by ealdormen, royal officials, and local communities. The laws covered a range of topics, including criminal law, public administration, public order, and ecclesiastical matters. The most serious crimes were punishable by death and forfeiture, with hanging, beheading, and drowning as common forms of execution.
In summary, common law evolved from Anglo-Saxon law, which provided the foundation for the legal system in England following the Norman Conquest. Anglo-Saxon law was a combination of unwritten customs and written laws, administered through a developing system of courts and assemblies.
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Common law in England and its influence
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied equally across the whole country. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
In England, common law replaced Anglo-Saxon law following the Battle of Hastings in 1066. It developed through judge-made laws and precedents in the proceedings of Royal justices in the Circuit courts. The United States Supreme Court has also regularly decided based on common law, as in the 1938 case of Erie Railroad v. Tompkins. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries.
Common law is practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Outside the US, parties in different jurisdictions often choose the law of England and Wales, especially in former British colonies and Commonwealth members. This is because commercial parties seek predictability and simplicity in their contractual relations, which common law provides.
Common law has influenced the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. However, common law has historically led to the unfair marginalization or disempowerment of certain groups, and past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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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. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The common law system in the US evolved from English common law, which spread to North America during the 17th and 18th centuries. Every US state except Louisiana has a common law legal system. Louisiana's system is based on French civil code, which outlines procedures for handling claims and punishments for offences.
In the US, federal courts hearing cases under their diversity jurisdiction apply statutory law but not common law developed by state courts. The US Supreme Court has permitted federal courts to make their own common law based on general legal principles. However, federal courts deciding issues under state law must defer to state court interpretations of state statutes.
The common law system in the US promotes stability and consistency in the legal justice system. However, it has also led to the marginalization and disempowerment of certain groups due to outdated or biased past decisions.
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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. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". Common law originated in the practices of the courts of English kings following the Norman Conquest and was spread to North America during the colonial period. It is practised in the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law systems offer extensive freedom of contract, and generally, everything is permitted unless expressly prohibited by law.
Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. Judges presiding over a case determine which precedents apply and whether to modify or deviate from them. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It sometimes proves to be the inspiration for new legislation.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is the most common legal system in the world, practised in about 150 countries. It is characterized by its reliance on legal codes that function as the primary source of law. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence.
In civil law systems, criminal proceedings follow an inquisitorial system. An examining magistrate develops the evidence and arguments for both sides during the investigation phase and presents their dossier to the president of the bench that will adjudicate on the case. The president of the bench is not merely an umpire and can directly interview witnesses or express comments during the trial.
In summary, the key difference between common law and civil law is their reliance on either legal precedent or legal codes, respectively. Common law systems tend to be less prescriptive, while civil law systems are more prescriptive and provide clearer rules for judges to follow for specific disputes.
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Common law and the Bill of Rights
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law relies on detailed records of previous rulings on similar situations to guide future decisions, as opposed to codified statutes.
The common law system, which originated in England, is used in several countries, including the United States, Australia, Canada, and New Zealand. In the US, common law plays a significant role in the Supreme Court, influencing both civil and criminal cases. The Supreme Court often adheres to previous rulings and interprets laws and constitutional provisions accordingly.
The Bill of Rights, on the other hand, is a list of important rights granted to the citizens of a country. In the US, the Bill of Rights consists of the first ten amendments to the US Constitution, ratified on December 15, 1791. These amendments safeguard individual liberties, such as freedom of speech, freedom of religion, and the right to bear arms, and limit government power.
The interaction between common law and the Bill of Rights is evident in landmark cases such as Marbury v. Madison, Espinoza v. Montana Department of Revenue, and Counterman v. Colorado. These cases illustrate how common law principles and the Bill of Rights influence judicial outcomes on critical issues like education, free speech, and religious freedom, shaping the theory and practice of the US government.
While common law focuses on judicial decisions and precedents, the Bill of Rights establishes the fundamental rights and freedoms that the legal system aims to uphold and protect. Together, they form important and foundational aspects of American law, with the Bill of Rights providing the framework for the protection of individual liberties, and common law guiding the interpretation and application of those rights in specific cases.
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Frequently asked questions
Common law is a body of law unwritten laws based on legal precedents established by the courts.
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.
The central principle of common law is stare decisis, which means "to stand by things decided". In other words, courts and judges need to follow earlier decisions and rulings when dealing with similar cases later.
Civil law systems rely primarily on codes and statutes, whereas common law systems rely on caselaw and legal precedent to guide their decisions. Civil law has clear rules for how judges need to rule for specific disputes, while common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The common law system was developed in England and brought to the American Colonies. By 1776, the colonial courts used common law as a matter of course. After the American Revolution, decisions made in US courts added to the body of common law.
