Anaya Nolan
Common law is one of the most prevalent legal systems in the world, with approximately 40 countries and territories using it. Common law is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. It is often contrasted with civil law, which has more meticulous legal codes and statutes that are less open to interpretation. Common law is used almost exclusively by countries that were once British colonies, including the United States, Canada, Australia, New Zealand, India, and many other generally English-speaking countries.
| Characteristics | Values |
|---|---|
| Number of countries using common law | Approximately 40 countries and territories |
| Number of countries using common law as part of a mixed legal system | Approximately 60 |
| Common law countries | Canada (excluding Quebec), Australia, New Zealand, the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States (except Louisiana and Puerto Rico), Bangladesh, and many other places |
| Common law as a legacy of | The British Empire |
| Common law is also known as | Case law |
| Other forms of law | Customary laws, religious legal systems |
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What You'll Learn
Common law countries and territories
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is practised in approximately 40 countries and territories, including the following:
- Canada (excluding Quebec)
- Australia
- New Zealand
- Most of the United Kingdom (England, Wales, and Northern Ireland)
- The United States (except Louisiana and Puerto Rico)
- India (excluding Goa and Puducherry)
- Pakistan
- Bangladesh
- Hong Kong
- South Africa
- Ireland
Common law is also used in many Caribbean jurisdictions, including Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, and Trinidad and Tobago.
In addition to these countries, roughly 60 more use common law as part of a mixed legal system, in which common law is blended with another form of law, such as civil, religious, or customary law. Common law is one of the most prevalent legal systems in the world and has spread primarily through the influence of the former British Empire. Today, common law is used almost exclusively by countries that were once British colonies.
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Common law in former British colonies
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. It is one of the most prevalent legal systems in the world, employed by the greatest number of people compared to any single civil law system. Common law originated in England following the Norman Conquest in 1066, and spread around the world as England built its empire.
Today, common law is used almost exclusively by countries that were once British colonies. Many former colonies retain the common law system, including Canada (excluding Quebec), Australia, New Zealand, the United States (excluding Louisiana and Puerto Rico), India (excluding Goa and Puducherry), and many others. These common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system.
The British transplantation of common law to its colonial territories provided the institutional tools necessary for strong development outcomes. However, the modern rule of law indicators among former British colonies vary, and the dynamics of the colonial institutional environment may explain such divergent results. For example, in North America, the importation of African slaves required the implementation of European-designed laws regulating master-slave relations. In Australia, colonizers adopted the practice of terra nullius, or nobody's land, thus not recognizing native land claims.
When British colonies gained independence, they often adopted a reception statute, a statutory law by which the new nation adopts pre-independence common law, unless explicitly rejected by the legislative body or constitution of the new nation. The adoption of common law in the newly independent United States was controversial, with widespread distrust and hostility towards anything British. However, Federalists believed that the common law was the birthright of Independence, as the natural rights to "life, liberty, and the pursuit of happiness" were protected by common law.
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Common law in the United States
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is practised in Canada (excluding Quebec), Australia, New Zealand, most of the United Kingdom (England, Wales, and Northern Ireland), South Africa, Ireland, India (excluding Goa and Puducherry), Pakistan, Hong Kong, the United States (on state and territorial levels excluding Louisiana and Puerto Rico), Bangladesh, and many other places.
The United States is one of the approximately 40 countries and territories that use common law. Common law in the United States is practised on both the federal and state levels, with the exception of Louisiana, which practises civil law. The American system is a common law system that relies heavily on court precedent in formal adjudications. In the US common law system, even when a statute is at issue, judicial determinations in earlier court cases are critical to the court's resolution of the matter before it.
The common law in the United States may refer to "judge-made" law or case law. Cases are legal determinations based on a set of particular facts involving parties with a genuine interest in the controversy. There are two types of case law: pure decisional case law and case law based on constitutional provisions. In pure decisional case law, there is no applicable statute or constitutional provision that applies. This type of decisional law is referred to as "judicially-created doctrine". Case law based on constitutional provisions involves the court being called upon to consider whether a particular statute or governmental action is consistent with the United States Constitution or a particular state constitution.
Today, common law is used almost exclusively by countries that were once British colonies. The United States, with its history as the commercial centre of the country, has made New York common law a popular choice for commercial contracts worldwide. American corporations are also often formed under Delaware corporate law, as Delaware has a deep body of law on corporate law issues.
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Common law in the United Kingdom
Common law is practiced in most of the United Kingdom, including England, Wales, and Northern Ireland. Scotland, on the other hand, has a distinct legal system, with Scots Law remaining separate from English law despite Scotland's union with England over 300 years ago.
The English common law system originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London. It was further institutionalized by King Henry II in 1154, who created a unified system of law "common" to the country, ending local control and variations in law from locality to locality. This was achieved by incorporating and elevating local customs to the national level, eliminating arbitrary remedies, and reinstating a jury system.
English common law, as applied in civil cases, was designed to compensate individuals for wrongful acts known as torts, including both intentional and negligent torts. It also served to develop the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system, which is also a development of the common law.
In the United Kingdom, common law is combined with the passing of legislation in Parliament, which consists of the Monarch, the House of Commons, and the House of Lords. The judiciary, which controls the court system and case law, is completely separate from Parliament and is independent. While statutory legislation is the most authoritative law, common law serves as the residual source of law in the absence of statutory law, with its principle of stare decisis (precedent) being based on judicial decisions, custom, and usage.
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Common law vs. civil law
There are 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 and Civil Law. Approximately 40 countries and territories use common law, and about 60 more use it as part of a mixed legal system. Common law is one of the most prevalent legal systems in the world and is employed by the greatest number of people compared to any single civil law system. Common law originated in England in the years following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law is often contrasted with civil law, in which the legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases. In a civil law system, the body of law is primarily derived from legal statutes and codes created by legislatures, and judicial authorities use the civil code to evaluate cases and reach decisions. Civil systems also clearly define the cases that can be brought to court, the procedures for handling claims, and the punishments for an offense.
Civil law is a legal system 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 is the most widespread by landmass and population and is practiced in about 150 countries. Unlike common law systems, which rely heavily on judicial precedent, 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 a common law system. There are several subdivisions of civil law, including French civil law, German civil law, and Scandinavian civil law.
The contrast between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (similar to case law but not binding) in civil law countries, and the growing importance of statute law and codes in common law countries. Common law countries are increasingly adopting codes, similar to civil law systems, in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
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Frequently asked questions
Approximately 40 countries and territories use common law.
Common law is practiced in Australia, Canada (excluding Quebec), New Zealand, the United States (excluding Louisiana and Puerto Rico), and the United Kingdom (England, Wales, and Northern Ireland), among others.
Around 60 countries use common law as part of a mixed legal system, blending it with another form of law, typically civil, religious, or customary law. For example, Nigeria operates largely on a common law system in the southern states but incorporates religious law in the northern states.
Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions.
