Anaya Nolan
Common law is a body of unwritten laws based on legal precedents and court decisions rather than statutes. It originated in medieval England and is still very much in effect in the US and UK, as well as in most Commonwealth countries. Common law is flexible and can respond to changes in society without legislative intervention. It relies on caselaw and legal precedent to guide decisions, and the principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases.
| Characteristics | Values |
|---|---|
| Basis | Common law is a body of law based on judicial decisions and precedents. |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Jurisdiction | Decisions of a court are binding only in a particular jurisdiction. |
| Court Hierarchy | Some courts have more power than others. |
| Consistency | Common law promotes stability and consistency in the legal system. |
| Malleability | Common law is more malleable than statutory law as it can be reinterpreted and revised without legislative intervention. |
| Evolution | Common law evolves gradually, reducing disruptive effects. |
| Legislative Intervention | Common law does not require legislative intervention to make changes. |
| Sources | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. |
| Dual System | The US and UK operate under a dual system of both common and civil law. |
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What You'll Learn
Common law vs civil law
Common law and civil law are the two main legal systems used throughout the world today. Common law systems are those that were former British colonies or protectorates, including the United States. Civil law, on the other hand, is the most common legal system in the world, practiced in about 150 countries.
Common law is a "body of law" based on court decisions rather than codes or statutes. It is more flexible and malleable than civil law, as it can respond to changes in society and higher courts can overrule prior decisions without legislative intervention. Common law is based on the principle of stare decisis, which means that courts and judges need to follow previous rulings when dealing with similar cases. This promotes stability and consistency in the legal system.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law systems rely primarily on codes and statutes, with a comprehensive code of statutes that outlines everything from procedures for handling claims to punishments for offenses. Civil law is generally more prescriptive than common law, and while civil law judges tend to give less weight to judicial precedent, their decisions are not binding in other cases, even if the facts are similar.
In civil law systems, criminal proceedings follow an inquisitorial system, where an examining magistrate develops the evidence and arguments for both sides during the investigation phase. The magistrate then presents their findings to the president of the bench, who may express comments during the trial but should not indicate their view on the guilt of the accused.
In summary, common law systems are more flexible and rely heavily on judicial precedent, while civil law systems are more prescriptive and rely primarily on codes and statutes.
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Common law's flexibility
Common law is a body of law based on court decisions or precedent, also known as caselaw, rather than codes or statutes. It is considered more flexible than civil law systems because it can respond to changes in society. Common law is not bound by precedent and can be reinterpreted and revised without legislative intervention. This flexibility allows common law to adapt to new trends in political, legal, and social philosophy.
In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to make changes in statutes and codes, which can be a lengthy process. This flexibility allows common law to evolve through a series of gradual steps, reducing disruptive effects.
The flexibility of common law also encourages good judgment by allowing judges to consider the economic consequences and practicality of applying legal principles in a particular case. For example, in the case of R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge considered the economic impact on the company of a judgment that prioritized legal principle over pragmatism. The judge's decision to curtail the costs ordered by £5,000 demonstrated a balance between following legal principles and considering the specific circumstances of the case.
Common law also provides stability and consistency because outcomes are based on previous caselaw rather than subjective, personal viewpoints. This stability is a key element in preserving peace and stability in society, allowing individuals to pursue their social and economic activities.
However, it is important to note that the flexibility of common law is limited to a certain extent. While it can adapt to new trends and be reinterpreted, it still operates within a framework of established principles and precedents. The flexibility lies in the application of these principles and rules rather than in their creation.
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Common law in the US
US common law has its origins in medieval England, and it was institutionalised by King Henry II in 1154, who created a unified system of law "common" to the country. This replaced the pre-Norman system of local customs and laws that varied in each locality. The US, as a former British colony, continues to operate under a dual system of both common and civil law.
In common law jurisdictions such as the US, the emphasis is on seeking a reorganisation rather than liquidation when a business gets into financial trouble. This is in contrast to civil law jurisdictions, which focus on liquidation. Additionally, common law systems offer more freedom of contract, with fewer provisions implied by law, while civil law systems are generally more prescriptive, with many provisions implied into a contract by law.
The American legal system is based on federalism, or decentralisation, with the national or "federal" government retaining significant powers while individual states retain powers not specifically enumerated as exclusively federal. Most states have court systems that mirror the federal court system, with the United States District Courts acting as trial-level courts, the United States Court of Appeals as the first level of appeal, and the United States Supreme Court as the final arbiter of the law.
Common law decisions today reflect both precedent and policy judgments drawn from economics, the social sciences, business, decisions of foreign courts, and more. While common law promotes stability and consistency, it has also led to the unfair marginalisation or disempowerment of certain groups, as 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 UK
The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. England and Wales operate under a common law system, which combines the passing of legislation with the creation of precedents through case law. Common law is a body of customary law based on judicial decisions and embodied in reports of decided cases. It is administered by the common-law courts of England and Wales and has been since the Middle Ages.
The common law is more flexible than statutory law. Common law courts are not bound by precedent but can reinterpret and revise the law without legislative intervention. This allows the law to adapt to new trends in political, legal, and social philosophy. The common law evolves through a series of gradual steps, so the law can change substantially over a decade or more without causing disruption. Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
The UK is a constitutional monarchy, with the monarch as the head of state. The duties, functions, and powers of the monarch are prescribed by convention, and one such convention is that the monarch remains politically neutral. The laws are established by the passing of legislation by Parliament, which consists of the monarch, the House of Commons, and the House of Lords. The judiciary is independent of Parliament and controls the court system and case law. Civil cases usually start in the County Court, with appeals going to the High Court and then to the Court of Appeal. Criminal cases start in the Magistrates' Court, with more serious matters sent to the Crown Court.
Scotland and Northern Ireland, while part of the UK and sharing the Westminster Parliament as their primary legislature, have separate legal systems from England and Wales. Scotland shares the Supreme Court with England, Wales, and Northern Ireland for civil cases, but its decisions are only binding on the jurisdiction from which the case arises. Scotland maintains a separate criminal law system from the rest of the UK, with the High Court of Justiciary being the final court for criminal appeals.
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Common law in other countries
Common law is one of the two main legal systems used throughout the world, the other being civil law. Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. 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.
Many countries use common law, including those that were formerly colonized by England, Great Britain, or the United Kingdom. This includes the United States, Canada, India, Australia, and many other English-speaking countries or Commonwealth countries. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. US common law originates from medieval England, and today, the US operates under a dual system of both common and civil law.
Some former colonies, however, do not use common law. For example, Quebec follows the civil code of France, and South Africa and Sri Lanka follow Roman Dutch law.
Ghana, a former British colony, retained the common law system after its independence and enshrined it in its 1992 Constitution. Similarly, the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, and Trinidad and Tobago also use common law.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents and court decisions rather than statutes.
Common law relies on stare decisis, a Latin term that means "to stand by things decided". In practice, this means that judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases.
Civil law systems rely primarily on codes and statutes, while common law systems place greater weight on precedent. Civil law is also more widely used in continental Europe.
Common law originated in England in the Middle Ages, specifically in the King's Court (Curia Regis) in Westminster, near London. It was further developed by judges rather than legislators until the late 19th century.
Common law is flexible and can respond to changes in society. It promotes stability and consistency because everyone knows that the outcome will be based on previous caselaw rather than subjective viewpoints.
