Kara Sears
Common law, also known as case law, is a system of law that relies on detailed records of similar situations and statutes as there is no official legal code that can be applied to a case. It is derived from judicial decisions instead of statutes. Common law courts usually use an adversarial system, in which two sides present their cases to a neutral judge. Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. While civil law is regularly updated, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
| Characteristics | Values |
|---|---|
| Basis | Common law is derived from judicial decisions, while civil law is a comprehensive, codified set of legal statutes created by legislators. |
| History | Common law has been the primary source of law for several hundred years, while civil law systems have a more recent history. |
| Geography | Common law is used in countries formerly colonized by England, Great Britain, or the United Kingdom, except those that were previously colonized by other nations, such as Quebec and South Africa. The U.S. is also a common law country. |
| Court System | Common law courts use an adversarial system with two sides presenting their cases to a neutral judge. Civil law systems use an inquisitorial system where an examining magistrate serves dual roles in developing evidence and arguments for both sides. |
| Precedent | Common law relies on stare decisis, where prior court decisions interpreting a statute are binding. Civil law systems do not consider a judge's decision interpreting the code as binding in future cases. |
| Flexibility | Common law allows lower courts to modify, deviate from, or overturn precedents in certain circumstances. Civil law systems have standardized codes to reduce bias and ensure consistent application. |
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What You'll Learn
- Common law is derived from judicial decisions, not statutes
- Common law is based on precedent, or stare decisis
- Common law is adversarial, with two sides presenting cases to a neutral judge
- Common law systems are found in former British colonies
- Common law is flexible, allowing lower courts to deviate from precedent
Common law is derived from judicial decisions, not statutes
Common law, also known as case law, is distinct from other legal systems as it is derived from judicial decisions and not statutes. This means that common law is based on the decisions of judges in similar past situations, rather than relying on a body of statutes or laws created by legislators. In other words, common law draws from the opinions and interpretations of judicial authorities and public juries.
The common law system is underpinned by the principle of stare decisis, which means that past judicial decisions form precedents for future cases. This ensures consistency and stability in the legal system. Judges presiding over cases determine which precedents apply, and these precedents are binding in future cases tried in lower courts. However, lower courts can deviate from or modify precedents if the current case is substantially different or if the precedent is outdated.
The common law system is primarily associated with countries that were historically colonised by England, Great Britain, or the United Kingdom. The United States, for example, is a common law country, with each state having its own common law rules. While the US federal courts also create federal common law rules, they are limited to specific areas mentioned in the Constitution, such as admiralty.
In contrast to common law, civil law systems have a comprehensive, codified set of legal statutes created by legislators. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishments for offences. It is regularly updated to create standardised codes and reduce bias in the application of laws. While civil law systems may also consider past decisions, they are not binding in the same way as precedents in common law.
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Common law is based on precedent, or stare decisis
In common law, it is essential to find relevant case law that matches the facts and legal issues of a case. This is because common law draws from institutionalised 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.
The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if the precedents are outdated or if the current case is substantially different. However, this is a rare occurrence. This system promotes stability and consistency in the legal justice system.
In contrast, civil law systems operate differently. In these systems, a judge's decision is not binding in later cases involving different parties. Civil law is a comprehensive, codified set of legal statutes created by legislators.
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Common law is adversarial, with two sides presenting cases to a neutral judge
Common law is a type of legal system used in several countries today, including the United States. It is distinct from civil law systems, which are typically more tolerant of allowing individual officials to exercise dual powers. Common law courts generally follow an adversarial system, where two sides present their cases to a neutral judge.
The adversarial nature of common law involves two separate parties: the prosecutor and the adjudicator. In criminal cases, the prosecutor, lodged in the executive branch, is responsible for investigating and locating evidence. They then present this evidence to the neutral adjudicator, who acts as a judge and makes a decision based on the presented information. This is in contrast to civil law systems, which operate under an inquisitorial system. In the inquisitorial system, an examining magistrate serves dual roles by developing the evidence and arguments for both sides during the investigation phase.
The common law system promotes stability and consistency within the legal framework. It relies on detailed records of similar situations and statutes, as there is no official legal code directly applicable to a specific case. Instead, the judge presiding over a case determines which precedents, or stare decisis, are relevant and binding for that particular situation. The precedent set by higher courts is generally binding on cases heard in lower courts, although lower courts have some flexibility to modify or deviate from these precedents if the circumstances warrant it.
The development of common law can be traced back to the 13th century in England, with Bracton's "On the Laws and Customs of England" serving as an early example. The term “common law” is often contrasted with “civil law,” and the underlying processes and reasoning between the two systems differ significantly. Civil law, as seen in civil code systems, provides a clear framework for bringing cases to court, handling claims, and determining punishments for offenses. It aims to create standardized codes to reduce bias and inconsistent application of laws.
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Common law systems are found in former British colonies
Common law, which originated in England following the Norman Conquest in 1066, was spread to the British colonies in the Americas, Asia, Africa, and the Pacific. Many former colonies, especially those that were colonized by England, Great Britain, or the United Kingdom, continue to retain the common law system today. These common law systems give significant weight to judicial precedent and the style of reasoning inherited from the English legal system.
The United States, both at the federal level and in most states and territories, follows common law. However, it is important to note that none of the common law systems in the United States are purely common law, as there are numerous codified statutes that courts must consider. Nevertheless, a key feature of U.S. common law is the principle of stare decisis, where prior court decisions interpreting a statute are considered precedent and binding.
Several other former British colonies, including Canada, Australia, New Zealand, and Ghana, also follow the common law tradition. Ghana's legal system, for instance, is largely based on English common law, which was introduced during the colonial period and retained even after independence. The country's 1992 Constitution enshrines this legal system, adapting it to the changing socio-economic and political landscape.
However, some former British colonies have mixed legal systems that combine elements of both common law and civil law. Examples include South Africa, Sri Lanka, and Guyana, which were previously colonized by other nations before falling under British rule. In these cases, the prior civil law system was often retained to respect the civil rights of the local colonists.
In summary, common law systems are prevalent in former British colonies, but the specific legal framework may vary depending on historical influences and local adaptations.
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Common law is flexible, allowing lower courts to deviate from precedent
Common law is a legal system used in several countries that were previously colonized by England, Great Britain, or the United Kingdom. It is a system of law that is derived from judicial decisions and precedents rather than from statutes. This means that common law, also known as case law, relies on detailed records of previous similar cases and statutes, as there may not be an official legal code that can be directly applied to a case. In common law, the judge presiding over a case determines which precedents apply to that particular case.
Common law is flexible in that it allows lower courts to deviate from precedent in certain circumstances. While the example set by higher courts is generally binding on cases tried in lower courts, lower courts can choose to modify or deviate from these precedents if they are outdated or if the current case is substantially different from the precedent case. This flexibility allows the legal system to adapt to changing circumstances and ensure that justice is served in each unique case.
The flexibility of common law also extends to the ability of lower courts to overturn precedents, although this is a rare occurrence. This flexibility is a key feature of common law systems and promotes the development of the law over time. It allows for the evolution of the law to address new and emerging issues that may not have been considered or contemplated when previous precedents were set.
The flexibility of common law stands in contrast to civil law systems, which are typically more rigid and codified. Civil law is a comprehensive set of legal statutes created by legislators that clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system.
The flexibility of common law allows for the development of a rich body of law that can adapt to the specific needs and circumstances of each jurisdiction. This flexibility has contributed to the widespread adoption of common law in many countries and the continued reliance on common law systems today.
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Frequently asked questions
Common law is law that is derived from judicial decisions instead of from statutes. It 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.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Every country that was colonized by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka. The US is also a common law country.
