Cameron Miranda
The common law system is a legal framework based on tradition and practice rather than formal legislation. It is one of the two main legal systems used today, the other being the civil law system. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. Civil law, on the other hand, is a codified set of legal statutes created by legislators, providing clear rules for judges to follow. While civil law countries tend to be former colonies of European nations, common law is prevalent in the US, the UK, and other English-speaking countries, as well as in many former British colonies.
| Characteristics | Values |
|---|---|
| Basis of the legal system | Common law is based on court decisions and legal precedent. |
| Civil law is based on codes and statutes. | |
| Binding nature of decisions | Common law decisions are binding in similar cases. |
| Civil law decisions are not binding in other cases, even with similar facts. | |
| Nature of the law | Common law is flexible and evolves gradually. |
| Civil law is standardised and regularly updated. | |
| Contract provisions | Common law systems have fewer implied provisions in contracts. |
| Civil law systems imply many provisions into contracts. | |
| Nature of the system | Common law is less prescriptive. |
| Civil law is more prescriptive. | |
| Origin | Common law originated in England. |
| Civil law originated in mainland Europe. | |
| Current use | Common law is used in the US, UK, Australia, Canada, Hong Kong, India, and New Zealand. |
| Civil law is used in Central and South America, Central and Eastern Europe, East Asia, and some former French, Dutch, German, Spanish, and Portuguese colonies. |
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What You'll Learn
Common law vs civil law contracts
The differences between common law and civil law systems have implications for how contracts are drafted, interpreted, and enforced. The UK, for example, follows a common law system, where courts develop legal principles based on previous cases and apply statutory law. Civil law systems, on the other hand, rely on detailed legal codes that set out legal rules in advance, rather than drawing on past judicial decisions.
In a common law system, judicial decisions are a primary source of law, and courts interpret contracts based on past rulings and business practices. Common law systems are less prescriptive, allowing for extensive freedom of contract, and generally permit anything that is not expressly prohibited by law. Common law contracts often explicitly define terms and events of default, and are often longer than civil law contracts.
Civil law systems, including those in Germany, Austria, Switzerland, and Taiwan, are more prescriptive and rely on codified statutes. Judges interpret and apply written statutes, and provisions are often implied into contracts by law. Contracts in civil law systems can be shorter because they rely on codified default rules and do not need to define every term.
In practice, the distinction between common law and civil law contracts is blurring. For example, common law drafters may apply a more exhaustive approach to civil law contracts, and civil-law drafters exposed to common-law drafting are prone to replicating it. When drafting contracts, lawyers should be aware of the differences between the two systems and avoid using confusing common-law terminology in civil law contracts.
The legal system governing a contract can affect its interpretation and enforcement. For example, in a civil law jurisdiction, a contract will be enforced by the administrative courts unless the contract specifies arbitration. Businesses operating internationally should understand these differences to effectively negotiate and enforce contracts.
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Common law jurisdictions
Common law systems, also known as case law, rely on caselaw and legal precedent to guide their decisions. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, and then extract the principles, analogies, and statements by various courts. The decisions of higher courts or legislatures carry more weight and are typically binding on lower courts in the same jurisdiction. Common law systems are more malleable than statutory law, and their decisions are binding only in a particular jurisdiction.
Common law systems are legal systems that give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Many former colonies, including the United States, retain the common law system today, and approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
The benefits and advantages of common law systems include stability and consistency, efficiency, and adaptability to the unforeseen. Common law promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints. Given that judges need only follow precedent when making decisions in common law systems, court proceedings can be much shorter, thereby saving everyone time and money. When lawmakers create statutes and rules, there is simply no way they can predict the countless situations in which courts may need to apply the laws.
Common law systems also contribute to robust commercial systems, as parties can predict whether a proposed course of action is likely to be lawful or unlawful and have some assurance of consistency. Commercial contracts almost always include a ""choice of law clause" to reduce uncertainty, and New York common law is particularly popular in this regard due to its depth and predictability.
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Common law and legislation
Common law, also known as case law, is a body of unwritten laws based on legal precedents and judicial decisions. It is less prescriptive than civil law and allows for interpretation and evolution through court decisions. Common law systems tend to have extensive freedom of contract, with few provisions implied into the contract by law, thus requiring all terms to be explicitly stated in the contract itself. Judicial decisions are generally binding and can only be overturned by the same court or through legislation.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is a more rigid system that clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for offences. Civil law systems typically have written constitutions based on specific codes, such as civil code, corporate law, administrative law, tax law, and constitutional law. Only legislative enactments are considered binding in civil law.
The distinction between common law and civil law is not always clear-cut, as some countries may apply greater weight to certain sources of law than others. For example, the US operates under a dual system of both common and civil law, with courts following common law traditions. Common law marriage, which grants similar rights to couples without a marriage license, is an example of common law in practice in the US today.
The sources of law and the level of emphasis placed on judicial decisions vary between common law and civil law systems. Countries that follow a common law system are typically former British colonies or protectorates, including the United States. In contrast, civil law systems are prevalent in former French, Dutch, German, Spanish, or Portuguese colonies and much of Central and South America, Central and Eastern Europe, and East Asia.
While civil law aims to create order and reduce bias through standardized codes, common law seeks to achieve consistent outcomes by applying the same standards of interpretation. However, common law has been criticized for perpetuating biases and making it challenging for marginalized groups to obtain favourable rulings until popular thought or civil legislation changes the interpretation.
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Common law's flexibility
Common law systems are flexible and adaptable, a feature that is derived from their reliance on judicial precedent and caselaw rather than a fixed code or statute. This means that common law courts are not bound by precedent and can reinterpret and revise the law without legislative intervention. This flexibility allows the common law to evolve through a series of gradual steps, reducing disruptive effects.
Common law is derived from the Latin 'stare decisis', which roughly translates to 'to stand by things decided'. This principle requires judges to follow earlier decisions and rulings, or caselaw, when dealing with similar cases later. However, the common law system is more malleable than statutory law, as it can adapt to new trends in political, legal, and social philosophy. This flexibility is particularly evident when compared to civil law systems, which rely primarily on codes and statutes created by legislators. Civil law systems have a comprehensive code of statutes that clearly outline the procedures for handling claims and the punishment for offences.
The flexibility of common law allows it to respond to changes in society and fill in gaps where lawmakers have not predicted the countless situations in which courts may need to apply the laws. This is in contrast to civil law systems, which require lawmakers to pass changes in statutes and codes, which can be a lengthy process. In common law systems, higher courts can overrule prior decisions as 'bad law' without waiting for lawmakers to act.
The reliance on judicial opinion and precedent in common law systems contributes to the robustness of commercial systems in countries like the United Kingdom and the United States. Commercial parties can predict whether a proposed course of action is likely to be lawful, allowing them to operate with greater freedom and efficiency. This predictability is a strength of common law systems, providing a degree of certainty and consistency in legal outcomes.
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Common law and marginalised groups
Marginalisation is the act of treating a person or group as though they are insignificant by isolating and/or disempowering them. Marginalisation is the result of discrimination and can take many forms, such as racism, sexism, ableism, ageism, homophobia and xenophobia. Marginalisation often attaches itself to identity, with age, ethnicity, nationality, sexuality, gender, disability or a combination of intersecting identities playing a role.
The law can marginalise certain groups of people by treating them as inferior, less important, or different from others, with the intention of forcing them into or maintaining their positions of powerlessness. For example, the law can be used to separate political beings from human bodies, as seen in the case of refugees being denied their internationally protected right to seek asylum and reduced to a marginal existence without rights or legal subjectivity. Similarly, people with intellectual disabilities have been historically excluded by the state and blamed for their own 'immiseration'.
In the context of common law, marginalisation can occur through the interpretation and application of legal texts. Appeal judgments in the common law tradition can create margins by prioritising certain legal points while relegating others to the position of obiter dicta, or remarks that are not central to the decision.
Marginalisation in law can also be seen in the enforcement and implementation of policies that fail to address the needs of specific communities. For instance, national educational policies may marginalise marginalised groups, denying them their right to education. This is particularly true for migrants, refugees, and Indigenous peoples who face challenges in accessing education.
Furthermore, in the workplace, marginalisation is often perpetuated by influential groups or individuals who hold power and may have little connection to marginalised communities. This power dynamic can result in discrimination and a lack of equal opportunities for marginalised groups, including LGBTQ+ individuals, women, and people of colour.
To address marginalisation, it is important for leaders to recognise and call out marginalising behaviour, as well as create an environment that values and supports the contributions of marginalised employees.
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Frequently asked questions
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Civil law is a comprehensive, codified set of legal statutes created by legislators, whereas common law is a body of unwritten laws based on precedent.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts, then locate any relevant statutes and cases, then extract the principles, analogies, and statements by various courts. More recent decisions, and decisions of higher courts, carry more weight. Finally, one integrates all the information and determines "what the law is", then applies that law to the facts.
Common law is more malleable than statutory law. Common law courts are not bound by precedent, but can, when good reason is shown, reinterpret and revise the law without legislative intervention. Common law evolves gradually, so the law can change substantially over time without sharp breaks, reducing disruptive effects.
Common law systems are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system. Many former British colonies retain the common law system today, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom.
