Cecily Zamora
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages, in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. Over time, it has evolved to become the basis of the legal systems of several countries, including the US, Canada, India, and Australia. Common law is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous decisions. It is flexible and can respond to changes in society, with higher courts empowered to overrule prior decisions as bad law.
| Characteristics | Values |
|---|---|
| Origin | Originated in the early Middle Ages in the King's Court (Curia Regis) in England |
| Basis | Based on judicial decisions and precedents, also known as case law |
| Evolution | Evolved to accommodate changes in social values and changes in society |
| Flexibility | More flexible than civil law as it doesn't require lawmakers to pass changes in statutes and codes |
| Influence | Influenced the legal systems of Wales, Ireland, and the British colonies |
| Current Use | Used in the US, Canada, India, Australia, and other Commonwealth nations |
| Comparison with Civil Law | In contrast to civil law, common law is based on precedent and judicial discretion rather than a comprehensive set of codes and statutes |
| Statutes | Statutes may supersede common law, but common law can also furnish the basis for new legislation |
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What You'll Learn
The influence of foreign law
The early development of common law was influenced by Roman law, with the first common law scholars, such as Glanvill and Bracton, well-versed in Roman canon law. The rediscovery of Roman law in Europe during the 12th and 13th centuries had a notable impact on the common law tradition, though it did not lead to a Roman law reception as seen on the continent.
The integration of the United Kingdom into the European Union (EU) legal system in 1973 also influenced domestic law in its constituent states, particularly those with a tradition of civil law, such as Germany. This integration brought about a more purposive technique of legislative interpretation than was customary in English common law.
Additionally, the United States' commercial center, New York, has a depth and predictability to its common law that is attractive to international parties. As a result, contracts involving parties from various countries often choose New York law as their governing law, even when the connection to New York is attenuated. Similarly, American corporate law issues frequently include a Delaware choice of law clause due to the extensive body of law in Delaware on these topics.
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The evolution of stare decisis
Common law, also known as case law, is deeply rooted in stare decisis, a Latin term that means "to stand by things decided". It is a foundational concept in the American legal system, where courts and judges should honour "precedent", or the decisions, rulings, and opinions from prior cases.
Stare decisis is based on the idea that when a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make its decision in alignment with the previous court's decision. This doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent, while vertical stare decisis refers to the idea that the decisions of higher courts take precedence over the decisions 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 from the precedent case.
The English common law of the 18th century served as the foundation for the idea of stare decisis in American jurisprudence. The English jurist William Blackstone described the English common law precedent doctrine as establishing a strong presumption that judges would follow prior precedents, where the same issues arise in litigation, to promote legal stability, unless such precedents were blatantly absurd or unjust. The American Supreme Court defined the justification for stare decisis as "promoting the even-handed, predictable, and consistent development of legal principles, fostering reliance on judicial decisions, and contributing to the actual and perceived integrity of the judicial process".
While stare decisis may be simple at its core, there are nuances and limits in the way it is applied. For example, in cases where following precedent may lead to unjust outcomes, judges may offer reasons or legal nuances to avoid following precedential decisions or to outright overturn prior rulings. In the case of Brown v. Board of Education (1954), the Supreme Court directly overturned the precedent of Plessy v. Ferguson (1893), which held that "separate but equal" public accommodations did not violate the Constitution. The history of segregation in America proved that "separate" usually did not result in "equal", and about 60 years later, the Supreme Court recognized that fact and decided in Brown that racially segregated schools violated the Constitution.
In conclusion, stare decisis is a critical concept in the evolution of common law, promoting stability and consistency in legal systems by requiring courts to follow existing precedents. However, it also allows for flexibility and change when necessary to ensure just outcomes.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other into their own legal systems.
Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England, in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. Common law is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law.
Civil Law
Civil law 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, most notably with France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law systems are characterized by their reliance on legal codes that function as the primary source of law. Civil law is generally more prescriptive than common law, and a civil law system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
While common law relies heavily on judicial precedent, civil law judges tend to give less weight to precedent and more to the legal codes that function as the primary source of law. Common law is less prescriptive than civil law, with fewer provisions implied into a contract, and generally permits everything that is not expressly prohibited by law. On the other hand, civil law is more prescriptive, with more provisions implied into a contract, and may require specific legislation for certain sectors or to limit the scope of a restriction to allow a successful infrastructure project.
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Common law in the modern age
Common law, a body of unwritten laws based on legal precedents, has played a significant role in shaping legal systems worldwide, particularly in countries with historical ties to the British Empire. In the modern age, common law continues to evolve and adapt to societal changes, maintaining its relevance through judicial decisions and legislative interpretations.
One of the key features of common law is its reliance on stare decisis, which means "to stand by things decided". This principle holds that courts should adhere to precedents established by previous judicial decisions when resolving similar cases. This promotes stability and consistency in the legal system. However, judges also have the authority to deviate from precedents or establish new ones in novel or exceptional cases, allowing for flexibility and adaptability in the law.
The evolution of common law in the modern age is influenced by various factors, including societal values, public understanding, and legislative changes. As society progresses, common law evolves to reflect changing social norms and ethical standards. For example, in Roper v. Simmons (2005), the United States Supreme Court held that imposing capital punishment for crimes committed by minors was unconstitutional, based on "evolving standards of decency" influenced by other nations' laws.
Additionally, the interpretation and application of common law are now facilitated by advancements in legal technology. Legal tech tools enable faster and more efficient research, making it easier for legal professionals to find relevant case law and stay up-to-date with the latest judicial decisions. This accessibility of information contributes to a more dynamic and responsive legal system.
While common law remains a fundamental aspect of legal systems in many countries, it coexists with civil law, which is a comprehensive, codified set of legal statutes. Civil law provides clear rules and procedures, while common law offers flexibility and the ability to adapt to unique circumstances. In modern times, the interplay between these two systems contributes to a more nuanced and comprehensive approach to jurisprudence.
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Common law across the world
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that has evolved over centuries and is now found in many countries around the world, including the US, Canada, India, and Australia. It is characterised by its reliance on judicial precedent and its flexibility to respond to changes in society.
The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country in Westminster, near London. It was during this time that the law was focused on procedural remedies rather than substantive rights. The English common law was largely created after the Norman Conquest of 1066, incorporating the customary norms of the time in areas such as crime, family, property, and inheritance.
The common law system in England directly influenced that of Ireland and partially influenced Scotland's distinct legal system. In the 17th and 18th centuries, English common law spread to North America during the colonial period. The US common-law system has since influenced the Uniform Commercial Code (UCC), a comprehensive set of laws governing all commercial transactions in the country. The UCC has been universally adopted by all states, providing uniformity and certainty in business relationships, allowing the American economy to thrive.
Common law stands in contrast to civil law, which is widespread in continental Europe and other parts of the world. Civil law systems rely on comprehensive codes and statutes created by legislators, with clear rules for judges to follow in specific disputes. In contrast, common law systems are more flexible and can adapt to new trends without legislative intervention. They evolve through a series of gradual steps, allowing for substantial changes over time without sharp breaks, reducing disruptive effects.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents. It is also known as judicial precedent, judge-made law, or case law.
Common law has evolved through judicial decisions and the creation of new precedents. It is flexible and can respond to changes in society.
Common law relies on caselaw and legal precedent to guide decisions, whereas civil law relies on codes and statutes. Civil law has clear rules for judges to follow for specific disputes, while common law gives judges more discretion.
Common law continues to be used in several countries, including the US, Canada, India, and Australia. It has also influenced the legal systems of former British colonies.
