Gavin Howe
Common law, also known as case 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 principle that courts and judges should follow previous rulings when dealing with similar cases later. Common law originated in England in the early Middle Ages and has since evolved and spread to other parts of the world, including the United States, Canada, Australia, and most members of the Commonwealth. It is one of the two main legal systems used today, alongside civil law, which relies primarily on codes and statutes.
| Characteristics | Values |
|---|---|
| Basis of common law | Court decisions, not codes or statutes |
| Sources | Precedent, judicial rulings made in previous similar cases |
| Latin name | stare decisis ("to stand by things decided") |
| Common law courts | Common in king's courts across England |
| Common law vs civil law | Civil law is a comprehensive, codified set of legal statutes created by legislators |
| Common law courts' role | Interpret previous court decisions and rulings |
| Common law vs civil law (2) | Civil law systems rely primarily on codes and statutes |
| Common law benefits | Stability, consistency, efficiency |
| Common law origins | Early Middle Ages in the King's Court (Curia Regis) |
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What You'll Learn
Common law is a body of unwritten laws
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin term that roughly translates to "to stand by things decided". This means that judges in common law systems rely on past rulings, or case law, when deciding similar cases in the future.
Common law is primarily developed through judicial decisions rather than statutes. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is often contrasted with civil law, which is a comprehensive, codified set of legal statutes created by legislators. Civil law systems, prevalent in mainland Europe, rely on clear rules outlined in codes and statutes to guide judges' rulings. In contrast, common law systems value stability and consistency by ensuring that similar cases are decided in a similar manner based on past precedents.
The development of common law can be traced back to the early Middle Ages in England, where it originated in the King's Court (Curia Regis). It has since evolved and spread to various parts of the world, including the United States, Australia, Canada, Hong Kong, India, and New Zealand, and most members of the Commonwealth. Commercial parties often choose the law of common law jurisdictions with well-developed bodies of common law to ensure predictability and simplicity in their contractual relations.
While common law is unwritten in the sense that it is not codified in a comprehensive civil code, it is nevertheless recorded in reports of decided cases, known as case law. These reports are published by both government and private-sector publishers, with the latter often adding indexing, references to key principles, and editorial analysis. Common law continues to influence legal systems today, promoting efficiency and consistency in judicial decision-making.
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Common law is based on precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided". This doctrine developed during the 12th and 13th centuries, and it requires courts and judges to follow previous rulings, or case law, when dealing with similar cases. For example, if a court has previously ruled on a specific set of facts, that ruling is binding in future cases involving the same or similar issues. Similarly, decisions made by higher courts are typically binding on lower courts within the same jurisdiction.
Common law 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. It then spread to other parts of the world, including North America during the colonial period, and it continues to be practised in many countries today, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
The development of common law is based on judicial decisions rather than statutes. While common law may incorporate certain statutes, it is primarily shaped by precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding a new case. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that previous decision. However, in a "case of first impression" with no precedent or clear legislative guidance, judges have the power to resolve the issue and establish new precedent.
The stability and consistency provided by common law are advantageous because everyone involved knows that the outcome will be based on previous case law rather than subjective viewpoints. Additionally, the efficiency of common law is enhanced since judges only need to follow precedent when making decisions, which can shorten court proceedings and save time and money.
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Common law is deeply rooted in stare decisis
Common law is a body of law that is primarily developed through judicial decisions rather than statutes. It is based on precedent, or stare decisis, which is a Latin phrase that means "to stand by things decided". This means that judges in common law systems rely on past rulings, or case law, when deciding similar cases in the future.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, which is a key principle that ensures consistency and stability in the legal system. Stare decisis provides a framework for evaluating future cases based on past judicial decisions.
The doctrine of precedent, or stare decisis, developed during the 12th and 13th centuries. It is a fundamental aspect of common law systems, which are used in many countries today, including Australia, Canada, India, and the United Kingdom. In these systems, judges are required to follow the decisions made in previous similar cases, ensuring consistency and predictability in the law.
In contrast, civil law systems, which originated in mainland Europe, rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes that outline procedures and punishments for specific offences. While civil law aims to create standardized codes to reduce bias, common law promotes stability and consistency by basing decisions on previous case law rather than subjective viewpoints.
State supreme courts in the United States, as common-law courts, are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This unique function has led to discussions about adopting distinct approaches to stare decisis for statutory and constitutional interpretation, as proposed by Justice Thomas in Gamble v. United States.
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Common law vs civil 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 England and is currently practised in several countries, including Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States. Common law is deeply rooted in stare decisis, which means "to stand by things decided". It promotes stability and consistency in the legal system, as judges rely on previous rulings and judicial decisions to guide their interpretation of similar cases. This also makes the legal system more efficient, as court proceedings can be shorter.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is the most common legal system in the world, practised in about 150 countries. Civil law is rooted in the Roman Empire and was later influenced by Napoleonic, Germanic, canonical, and feudal laws. It is characterised by its reliance on legal codes that serve as the primary source of law. Civil law systems are more prescriptive, providing clear rules for judges to follow when ruling on specific disputes. These systems aim to create order and reduce bias by clearly defining the cases that can be brought to court, the procedures for handling claims, and the punishments for offences.
One key difference between the two systems is their approach to precedent. Common law systems heavily emphasise stare decisis, where prior court decisions are recognised as legally binding precedent. In civil law systems, however, judicial decisions are generally not binding in later cases, even if the facts are similar. Civil law judges tend to give less weight to precedent and may be forbidden from pronouncing general principles of law, as in the case of the Napoleonic Code.
Another distinction is the level of prescription in contract law. Common law systems have extensive freedom of contract, implying few provisions into the contract by law. It is important to set out all the terms governing the relationship between the parties in the contract itself. In contrast, civil law systems imply many provisions into a contract, allowing for shorter contracts. These provisions may include protections for consumers or equal bargaining provisions to address power imbalances between parties.
The choice between common law and civil law systems has implications for commercial transactions and dispute resolution. Commercial parties often seek predictability and simplicity in their contractual relations, and they frequently choose the law of a common law jurisdiction with a well-developed body of law. For example, contracts involving parties from various countries may choose the law of New York due to its depth and predictability. Similarly, London is considered the pre-eminent centre for litigation of admiralty cases.
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Common law in the Middle Ages
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". This means that judges need to follow previous rulings when dealing with similar cases later on.
During the Middle Ages, the main sources for the history of common law were the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin and made up of bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. The doctrine of precedent developed during the 12th and 13th centuries, as collective judicial decisions were based on tradition. The 12th century saw a shift across northwestern Europe from local, informal power arrangements to formal government, with the key reign in England being that of Henry II (1154-1189). During this time, the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) were established in Westminster, London. The creation of these permanent institutions was part of Henry II's reorganisation of royal justice, which expanded geographically and socially across the country.
The 12th and 13th centuries also saw the influence of Roman law in England, with the Bologna revival of Roman law reaching England during this time. Most lawyers and judges in 12th-century England were churchmen schooled in Canon and Civil Law, which enabled them to construct a rational and definite system of law out of the vague and conflicting mass of customs. The first treatises on English law, such as Glanvil's treatise, showed the influence of Roman legal principles, with Bracton's 13th-century treatise drawing more extensively upon Roman law. After the end of the 13th century, the study of Civil and Canon law ceased to directly influence the development of English law.
The expanded system of royal justice that emerged in the late 1100s and the norms it upheld came to be known as the 'Common Law'. This was conservative in terms of substantive law, incorporating customary norms of the law of crime, family, property, and inheritance. However, it was innovative in terms of procedure, emphasising written documentation, peaceful dispute resolution, the use of local juries, and a clear hierarchy of courts. Land law was an early area of common law that elaborated a detailed set of substantive rules, eventually summarised in Littleton's Tenures, written by Sir Thomas Littleton and published in 1481.
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Frequently asked questions
Common law is a body of law based on court decisions rather than codes or statutes. It is deeply rooted in stare decisis, which means "to stand by things decided".
Civil law is a comprehensive, codified set of legal statutes created by legislators. Civil law systems have clear rules for how judges need to rule for specific disputes. Common law, on the other hand, relies on caselaw and legal precedent to guide decisions.
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 at Westminster, near London. It was largely created in the period after the Norman Conquest of 1066.
Common law is developed through judicial decisions and interpretations from previous similar cases. The presiding judge determines which precedents to apply when deciding each new case.
