Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law is flexible and can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions and reinterpret and revise the law without legislative intervention. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Basis of decisions | Judges present the precedents that apply to a case, influencing the criteria that a jury uses to interpret it. |
| Flexibility | Common law is flexible as it can respond to changes in society. Higher courts can overrule prior decisions without waiting for lawmakers to do so. |
| Judicial authority | Common law allows judges to reinterpret and revise the law without legislative intervention. |
| Evolution | Common law evolves through a series of gradual steps, so the law can change substantially over time without sharp breaks, reducing disruption. |
| Influence on civil law | Common law influences civil law codes, which must be changed constantly because court precedents are not binding. |
| Basic principles | The basic principles of common law are inherited and resemble those of British and American law, including the role of courts and the authority of the supreme court. |
| Limitations | Common law has been criticised for leading to the unfair marginalisation or disempowerment of certain groups, with past decisions shaping future rulings until societal changes prompt a judicial body to overturn the precedent. |
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What You'll Learn
Common law is flexible and adaptable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is flexible and adaptable in several ways.
Firstly, common law is adaptable to unforeseen situations. When lawmakers create statutes and rules, they cannot predict all the possible scenarios in which courts may need to apply the laws. Common law systems address this by allowing courts to address situations not originally predicted by lawmakers. This adaptability is especially important as technology continues to evolve and play a greater role in our lives.
Secondly, common law is flexible in that it can respond to changes in society. Unlike civil law systems, common law does not require lawmakers to pass changes in statutes and codes, which can be a lengthy or impossible process. Instead, higher courts in common law systems can overrule prior decisions as "bad law" without waiting for lawmakers to act.
Thirdly, common law allows for some freedom of interpretation. While it places an emphasis on precedent, it is not bound by past decisions to the extent that it ignores the contemporary world outside of the law. In "cases of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This flexibility can encourage good judgment and ensure that justice is served.
Lastly, common law systems generally provide more freedom of contract compared to civil law systems. In a common law system, few provisions are implied into a contract by law, and everything is permitted unless expressly prohibited. This flexibility allows parties to set out all the terms governing their relationship in the contract itself, resulting in a more comprehensive agreement.
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Common law is based on legal precedents
Common law is a body of unwritten laws based on legal precedents. It is a flexible system that can respond to changes in society. Common law is made by judges in a court, who use precedent – decisions made in previous similar cases – to decide how they will judge a new case. If no past cases with similar circumstances exist, a new decision is made, which then becomes a precedent for future similar cases.
The common law system as we know it started in England during the Middle Ages. Several countries around the world, including the US, Canada, India, and Australia, continue to rely heavily on common law when resolving legal disputes. Common law is often contrasted with civil law, which requires lawmakers to pass changes in statutes and codes. In common law, higher courts can overrule previous decisions without waiting for lawmakers to act.
In common law, judges present the precedents that apply to a case, which can significantly influence the criteria that a jury uses to interpret the case. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. This dynamic can make it difficult for marginalized parties to pursue favorable rulings until popular thought or civil legislation changes the interpretation of common law. For example, in England, common law held until the 1970s that fathers were entitled to custody of the children after a divorce, effectively keeping women trapped in marriages.
The flexibility of common law also means that it evolves through a series of gradual steps, so that over a decade or more, the law can change substantially without a sharp break, thereby reducing disruption. Common law courts are not absolutely bound by precedent, but can, when an extraordinarily good reason is shown, reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy.
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Common law is derived from societal customs
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society. Common law is derived from societal customs, with its roots tracing back many centuries. The common law system as we know it today started in England during the Middle Ages and has since spread to other countries, including the U.S., Canada, India, and Australia.
The term "common law" is often used in contrast to "civil law," which originated in mainland Europe. While common law is based on judicial precedent and stare decisis ("to stand by things decided"), civil law relies primarily on codes and statutes. In a common law legal system, judges play a crucial role in interpreting and applying precedents to new cases. They can also overturn prior decisions as "bad law" without waiting for lawmakers to act.
The evolution of common law is gradual and adaptable. It does not work from pre-established truths but draws its generalizations from particular cases. This flexibility allows common law to keep pace with new trends in political, legal, and social philosophy. For example, societal changes can prompt a judicial body to overturn outdated or biased precedents, as seen in the historical fight for women's rights.
However, it is important to note that common law has been criticised for perpetuating the marginalisation or disempowerment of certain groups. The process of changing societal customs and achieving judicial reform can be challenging and time-consuming, requiring significant societal change to prompt a shift in legal interpretation.
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Common law is influenced by judges' interpretations
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a flexible system that can respond to changes in society. Common law is influenced by judges' interpretations in several ways.
Firstly, judges present the precedents that apply to a case, and these interpretations can significantly influence the criteria that a jury uses to interpret a case. Judges are required to follow stare decisis, a Latin phrase that means "to stand by things decided". In other words, judges need to follow previous decisions and rulings, also known as case law, when dealing with similar cases. However, judges do have some freedom in their interpretations, and lower courts can modify or deviate from precedents if they are outdated or if the current case is substantially different.
Secondly, common law is influenced by judges' interpretations of societal customs. In the past, judges would resolve disputes on an ad hoc basis according to their interpretation of the customs. These decisions would be recorded and filed, and over time, a rule known as stare decisis (or precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge. This process has contributed to the evolution of common law over time.
Thirdly, common law is influenced by judges' interpretations of policy and external factors. Today, common law decisions reflect both precedent and policy judgments drawn from economics, the social sciences, business, decisions of foreign courts, and other fields. While there is debate about how much these external factors should influence adjudication, it is clear that judges do draw on their experiences and learning from various sources outside of the common law system.
Overall, while common law is influenced by judges' interpretations, it is also a dynamic and evolving system that can adapt to new trends and changes in society.
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Common law can be changed by higher courts
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 is based on the idea that courts and judges should follow earlier decisions and rulings when dealing with similar cases.
However, common law is not static and can be changed by higher courts. Higher courts can overrule prior decisions as "bad law" and establish new precedent without needing to wait for lawmakers to act. This is because common law is flexible and can respond to changes in society. For example, societal changes can prompt a judicial body to overturn a precedent, leading to a substantial change in the law over time. This was seen in the case of 19th and early 20th-century feminists who fought for women's rights, eventually overturning the precedent that fathers were entitled to custody of children in cases of divorce.
The decisions of higher courts are also given more weight than those of lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different. This means that common law is more malleable than statutory law, as it can be reinterpreted and revised without legislative intervention to adapt to new trends in political, legal, and social philosophy.
The process of changing common law begins with determining the facts of a case. Relevant statutes and cases are then located, and the principles, analogies, and statements made by various courts are considered. Finally, all the information is integrated, and the law is determined and applied to the facts. This process can be complex and time-consuming, but legal technology has made researching case law faster and more accessible.
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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 flexible and can respond to changes in society.
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. Judges present the precedents that apply to a case and significantly influence the criteria that a jury uses to interpret it.
Common law changes when higher courts overrule prior decisions as "bad law". When there is no past case with similar circumstances, a new decision is made, which becomes a precedent for future similar cases.
Common law is more flexible than civil law. Common law doesn't require lawmakers to pass changes in statutes and codes, whereas civil law codes must be changed constantly.
