Keith Mack
Common law is a body of 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. Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. While some U.S. states have abolished common law crimes, others continue to recognize them.
| Characteristics | Values |
|---|---|
| Type of Law | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Location | Common law is used in England, Wales, some U.S. states, and some Commonwealth countries. |
| Application | Common law is used in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. |
| Precedent | A precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. |
| Record-Keeping | Common law relies on detailed records of similar situations and statutes to inform future decisions. |
| Judicial Interpretation | Judges interpret the law and determine which precedents apply to a particular case. |
| Binding Nature | Decisions made by higher courts are typically binding on lower courts in the same jurisdiction. |
| Consistency | Common law promotes stability and consistency in the legal system by ensuring that outcomes are based on previous caselaw rather than subjective viewpoints. |
| Examples of Common Law Crimes | Defamatory libel, obstruction of justice, nightwalking, riot, affray, eavesdropping, etc. |
| Abolition | Some jurisdictions, such as New Jersey and Australia, have abolished common law crimes, while others still recognize them. |
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What You'll Learn
Common law vs civil law
Common law and civil law are two different legal systems with distinct characteristics. Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law, as it arises from uncodified case law that comes about as a result of judicial decisions. Common law recognises prior court decisions as legally binding precedent. It is a less prescriptive system, with few provisions implied in a contract. Therefore, it is important to set out all the terms governing the relationship between the parties to a contract in the contract itself. Common law is prevalent in countries that were former British colonies or protectorates, including the United States.
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 starting in the 19th century, with 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 generally more prescriptive than common law, with more provisions implied into a contract. This means that a civil law contract may be shorter, as ambiguities can be resolved by operation of law.
Another key difference is the role of precedent. Common law systems heavily rely on judicial precedent, whereas civil law systems place less emphasis on precedent and more on legal codes as the primary source of law. In civil law, judges give less weight to precedent and more weight to legal codes. For example, the Napoleonic Code forbade French judges from pronouncing general principles of law.
In terms of criminal law, common law offences are crimes under English criminal law, the criminal law of some Commonwealth countries, and some US state laws. These offences are not based on statute but are developed entirely by the law courts. In some US states, common law crimes have been abolished, while others continue to recognise them. In England and Wales, there have been moves to abolish common law offences and replace them with offences defined by statute, as common law offences are seen as vague and open to development by the courts.
Common law marriage, or non-ceremonial marriage, is another example of common law in action. It is a legal framework that allows couples to be considered married without a formal civil or religious marriage. While it is not common in the US, some states do have statutes allowing for common law marriage if certain requirements are met.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs without a license or participation in a formal ceremony. Instead, it results from an agreement between two legally capable people who intend to be married, followed by cohabitation. In other words, when two people who are legally able to marry live together as a married couple and present themselves to the world as such, they are considered common-law married.
The recognition of common-law marriages varies by jurisdiction. While some countries or states may respect the validity of common-law marriages lawfully entered into in other jurisdictions, not all jurisdictions permit them. For example, common-law marriage is recognized in seven states and the District of Columbia in the United States, with nine other states recognizing it with restrictions. In Canada, couples in marriage-like relationships may be granted certain rights and responsibilities akin to those of a married couple, but they are not legally considered married. In the United Kingdom, a 2008 poll revealed that 51% of respondents incorrectly believed that cohabitants had the same rights as married couples. Scotland, for instance, does not recognize common-law marriage, although a form of irregular marriage called 'marriage by cohabitation with habit and repute' existed until 2006.
The history of common-law marriage is rooted in ancient traditions. In medieval Europe, marriage was governed by canon law, which recognized as valid a marriage in which the parties stated they took each other as husband and wife, even without witnesses. In ancient Greece and Rome, marriages were private agreements between individuals and estates. Over time, marriage laws evolved, with the Catholic Church forbidding clandestine marriage at the Fourth Lateran Council in 1215, requiring marriages to be announced in a church by a priest. Later, in 1753, England abolished common-law marriages with the Marriage Act, mandating that marriages be performed by a priest of the Church of England. However, this did not apply to the American colonies, where common-law marriage persisted and continues to be recognized in some states today.
While the specifics of common-law marriage recognition vary across jurisdictions, certain general criteria are typically considered. Firstly, both partners must have the legal capacity to marry, meaning they must be of legal age, of sound mind, and not already married to someone else. Secondly, both partners must intend to be married and behave as a married couple, presenting themselves as such to friends, family, and the community. Lastly, the couple must live together (cohabitation), although there is no statutory requirement for the duration, and courts evaluate this on a case-by-case basis.
In summary, common-law marriage allows couples to be legally married without undergoing a formal marriage process, provided they meet certain conditions, including mutual agreement, cohabitation, and holding themselves out as married. The validity and recognition of common-law marriages differ across jurisdictions, with some states or countries abolishing this practice altogether.
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Common law offences
In England and Wales, the Law Commission's programme of codification of the criminal law included the aim of abolishing all the remaining common law offences and replacing them, where appropriate, with offences precisely defined by statute. Common law offences were seen as unacceptably vague and open to development by the courts in ways that might offend the principle of certainty. However, neither the Law Commission nor the UK Parliament have completed the necessary revisions of the law, so some common law offences still exist. In England and Wales, unless a specific maximum sentence has been codified, common law offences are punishable by unlimited fines and unlimited imprisonment.
At the state level in the U.S., the situation varies. Some states, such as New Jersey, have abolished common law crimes, while others have chosen to continue to recognize them. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder, and their meaning, are entirely set out in case law.
Some common law offences that have been abolished or redefined as statutory offences include contempt of court, defamatory libel, disabling to commit an indictable offence, and obstruction of justice. In Canada, the consolidation of criminal law in the Criminal Code, enacted in 1953, involved the abolition of all common law offences except contempt of court. In New Zealand, the ability to be proceeded against at common law for being a party to a criminal offence was abolished by section six of the Criminal Code Act 1893. The Australian Capital Territory, the Northern Territory, Queensland, Tasmania and Western Australia have also abolished common law offences, but they still apply in some other Australian states.
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Common law in the US
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes. In the US, 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 US operates under a dual system of both common and civil law.
The US legal system initially fashioned its common law rules based on English common law. However, it is important to note that none of the common law systems in the US are purely common law systems. This is because US courts, including those in common law states, must consider countless codified statutes. Nevertheless, the principle of stare decisis remains constant in US common law legal systems. This means that prior court decisions interpreting a statute are considered precedent and are binding, even if a court is interpreting a statute and not directly applying common law.
At the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes, while others continue to recognize them. For example, in Michigan, the penal code does not define the crime of murder; instead, the elements and meaning of murder are set out in case law. State legislatures may also choose to codify common law rules from their state courts, either to give them permanence, modify or expand upon them, or replace them entirely with new legislation.
While common law systems rely on case law and legal precedent, civil law systems primarily rely on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that outlines everything from procedures to punishments.
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Common law in the UK
Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning in earlier decisions. It is a system that promotes stability and consistency in the legal justice system. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower 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. It is used in cases where there is no specific basis in statute. Common law is the foundation and prime source of English law, but the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws.
In the UK, there are an estimated 3,500 classes of criminal offences. Common law offences are crimes under English criminal law and the criminal law of some Commonwealth countries. Some examples of common law crimes include murder, manslaughter, theft, and robbery. However, in England and Wales, there has been a push to abolish common law offences and replace them with offences precisely defined by statute. Common law offences have been criticised as being unacceptably vague and open to development by the courts in ways that might offend the principle of certainty.
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Frequently asked questions
Common law crimes are offences under the common law, developed entirely by the law courts, having no specific basis in statute. They are punishable under the common law, rather than by statutory law.
Common law crimes are rooted in judicial decisions and have evolved over centuries, whereas statutory crimes are defined by Acts of Parliament and reflect the need for clarity and specificity in criminal law. Statutory crimes are more adaptable to contemporary issues and societal changes.
Common law crimes are still applicable in some jurisdictions, such as certain U.S. states and parts of England and Wales. However, many jurisdictions have moved towards abolishing common law crimes and replacing them with offences defined by statute.
